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THE  SUPREME  COURT 
IN  UNITED  STATES  HISTORY 


Volume  Three 


ROGER  BROOKE  TANEY 
From  the  portrait  by  G.  F.  A.  Hoaly. 


THE  SUPREME  COURT 

IN 

UNITED  STATES  HISTORY 


CHARLES  ^^REN 

rononLT  ^Miaiun  ATTOBmr-ourasu.  or  tu  unitio  btatk 


IN  THEEE  VOLUMES 

Volume  Thbeb 

1856-1918 


BOSTON 

LITTLE.  BROWN,  AND  COMPANY 

198S 


Oopiffight^  199$^ 
Bt  Lnru,  Bbowh,  and  Compaitt. 

AUrighUtuvrveA 
Pabliihed  May,  192S 


PEomD  or  TBI  rirmD  Statm  or  AKniOA 


CONTENTS 


VoLUMB  Three 


TAGM 

Abbreviationb  of  Titles  of  Books  Fbequbntlt  Cited  iz 

CHAPTBR 

XXVI.    The  Deed  Scott  Case  .        .                       .  1 

XXVII.    The  Booth  Case»  and  Congressional  At- 
tacks      42 

XXVm.    Civil  War  and  Chief  Justice  Chase  .        •  80 

The  Miluoan  Case 140 

Reconstruction 177 

The  Legal  Tender  Cases     ....  220 

The     Slaughterhouse     Cases     and     the 

Death  of  Chase ^5 

Chief  Justice  Waite  and  the  Foxtrteenth 

Amendment 284 

The  Civil  Rights  Acts         ....  822 

XXXV.    Increase  of  Nationalism     ....  844 

XXXVI.    Expansion  of  Judicial  Powebs    .                .  885 

XXXVn.    Chief  Justices  Fuller  and  White      .        .  418 

XXXVni.      CoBOfERCE  AND  THE   POUCE  PoWER  .451 

Appendix:   List  of  Pebsons  Nominated  as  Chief  Jus- 
tice AND  AS  Associate  Justice  of  the  Supreme  Court 

OF  THE  United  States,  178^1921 479 

Index 485 


ILLUSTRATIONS 


Volume  Thrbb 


ROGER  BROOKE  TANEY      .        .        .       .       FronHapiece 
From  the  portrait  by  G.  P.  A.  Healy. 

TAQM 

THE  SUPREME  COURT  IN  1865         ....    182 

Davis,  Swayne,  Grier,   Wayne,  Chief  Justice  Chase, 
Nelson,  Clifford,  MiUer,  Field. 

THE  SUPREME  COURT  IN  1882         ....    844 

Wood,  Gray,  Harlan,  Blatchford,  Bradley,  Miller,  Chief 
Justice  Waite,  Field,  Mathews. 

THE  SUPREME  COURT  IN  18»9         ....    480 
Peckham,  Shiras,  White,  McKenna,  Brewer,  Harlan, 
Chief  Justice  Fuller,  Gray,  Brown. 

THE    PRESENT  COURT-ROOM,    FORMERLY   THE 
SENATE  CHAMBER 474 

From  "The  History  of  the  United  States  Capitol"  by 
Glenn  Brown,  F.  A.  I.  A. 


v9 


ABBREVIATIONS  OF  TITLES  OF  BOOKS 

FREQUENTLY  CITED 

[For  the  purpose  of  conciseness  in  the  citation  of  books  most  frequently 
quoted,  the  following  abbreyiations  have  been  used  in  the  notes.] 

J,  Q,  Adamsy  Memoirs  of  John  Quincy  Adams  (1874-1877),  edited 

by  Charles  Francis  Adams,  12  vols. 
/.  Q.  Adams*  WrUingSy  The  Writings  of  John  Quincy  Adams  (1913- 

1915),  edited  by  Worthington  Chauncey  Ford,  7  vols. 
Clay,  The  Works  of  Henry  Clay  (1904),  edited  by  Calvin  Colton, 

Federal  edition,  10  vols. 
Curtis,  The  Life  and  Writings  of  Benjamin  Bobbins  Curtis,  LL,D. 

(1879),  edited  by  Benjamin  B.  Curtis,  %  vols. 
Hamilton,  The  Works  of  Alexander  Hamilton  (1904),  edited  by 

Henry  Cabot  Lodge,  12  vols. 
Hamilton  (Lodge's  ed.).  The  Works  of  Alexander  Hamilton  (1885- 

1886),  edited  by  Henry  Cabot  Lodge,  9  vols. 
Hamilton  (J.  C.  Hamilton's  ed.).  The  Works  of  Alexander  Hamilton 

(1850-1851),  edited  by  John  Church  Hamilton,  7  vols. 
Iredell,  Life  and  Correspondence  of  James  Iredell  (1858),  edited  by 

Griffith  John  McRee,  2  vols. 
Jay,  The  Correspondence  and  Public  Papers  of  John  Jay  (1890- 

1898),  edited  by  Hemy  Phelps  Johnston,  4  vols. 
Jefferson,  The  Works  of  Thomas  Jefferson   (1904-1908),  edited 

by  Paul  Leicester  Ford,  12  vols. 
Jefferson  (A.  C.  Lipscomb  ed.),  The  Writings  of  Thomas  Jefferson 

(1903-1904),  edited  by  Andrew  C.  Lipscomb,  20  vols. 
Jefferson  (H.  A.  Washington  ed.),  The  Writings  of  Thomas  Jeffer- 
son (1853-1854),  edited  by  Henry  Augustine  Washington, 

9  vols. 
King,  The  Life  and  Correspondence  of  Bufus  King   (1894-1900), 

edited  by  Charles  Ray  King,  6  vols. 
Madison,  The  Writings  of  Jamss  Madison   (1900-1910),   edited 

by  Gaillard  Hunt,  9  vols. 
Madison  (1865),  Letters  and  Other  Writings  of  James  Madison 

(1865),  published  by  order  of  Congress,  4  vols. 
MarshaU,  Life  of  John  Marshall  {}%\f^\^\9),  by  Albert  Jeremiah 

Beveridge,  4  vols. 


X       ABBREVIATIONS  OF  TITLES  OP  BOOKS 

MasoUy  Memoir  and  Correspondence  of  Jeremiah  Mason  (187S)» 

edited  by  George  S.  Hillard. 
Monroe,  The  Writings  of  James  Monroe  (1898-19QS),  edited  by 

Stanislaus  Murray  Hamilton,  7  vols. 
Story,  Life  and  Letters  of  Joseph  Story  (1851),  by  William  Waldo 

Story,  2  vols. 
Sumner,  Memoir  and  Letters  of  Charles  Sumner  (1877-1893),  by 

Edward  Lillie  Pierce,  4  vob. 
Taney,  Memoir  of  Roger  Brooke  Taney  (1872),  by  Samuel  T^ler. 
Ticknor,  Life,  Liters  and  Journals  of  George  Ticknor  (1876),  2  vols. 
Washington,  Writings  of  George  Washington  (18S4-18S7),  edited 

by  Jared  Sparks,  11  vols. 
Washington  (Ford's  ed.).  Writings  of  George  Washington  (1886- 

1893),  edited  by  Worthington  Chauncey  Ford,  14  vols. 
Webster,   The  Writings  and  Speeches  of  Daniel   Webster   (1903), 

18  vols. 
Wirt,  Memoirs  of  the  Life  of  William  Wirt  (1849),  by  John  Pen- 
dleton Kennedy,  2  vols. 


THE  SUPREME  COURT 
IN  UNITED  STATES  HISTORY 


THE  SUPREME  COURT 
IN  UNITED  STATES  HISTORY 


VOLUME  THREE 


CHAPTER   TWENTY-SIX 

THE  DRED  SCOTT  CASE 
1856-1857 

At  this  critical  juncture,  when  at  the  North  the  faith 
of  the  general  public  in  the  Court's  impartiality  had 
been  seriously  weakened  by  the  undeserved  attacks  of 
the  anti-slavery  press  and  politicians,  the  famous  case  of 
Dred  Scott  v.  Sandford^  19  How.  393,  came  on  for  argu- 
ment in  the  spring  of  1856.  In  attributing  wholly  to 
Chief  Justice  Taney's  opinion  in  this  case  the  passionate 
hostility  towards  the  Court  which  followed  its  decision 
in  1857,  historians  have  too  largely  overlooked  the  fact 
that  the  undermining  campaign  directed  against  the 
Court,  preparatory  to  this  overturn  in  the  hearts  of  the 
people,  had  been  carried  on  for  nine  years.  The  Dred 
Scott  Case  had  been  first  docketed  in  the  Court  in  De- 
cember, 1854,  at  the  same  time  when  the  appeals  in  the 
Booth  Cases  from  Wisconsin  were  filed.  While  the 
former  case  has  received  more  attention  from  jurists  and 
historians,  it  was  the  latter  which  aroused  the  greatest 
attention  and  excitement  at  the  time  when  they  were 

pending.    Of  the  Dred  Scott  Case  little  was  generally 
VOL.  ni — 1 


2  THE  SUPREME  COURT 

known  until  shortly  before  it  came  on  for  argument  in 
February,  1856.  Although  charges  were  made  later 
that  the  case  had  been  " fabricated'*  by  the  slavery 
party  in  order  to  secure  a  decision  by  the  Court,  the 
absurdity  and  falsity  of  the  suggestion  was  apparent, 
when  all  the  facts  as  to  its  history  became  known.* 
In  the  autumn  of  1846,  and  hence  before  the  power  of 
Congress  over  slavery  in  the  Territories  had  become 
a  vital  issue,  a  negro,  Dred  Scott,  began  a  suit  against 
the  widow  of  his  former  master,  in  the  State  Circuit 
Court  in  St.  Louis,  based  on  the  ground  that  his  former 
master.  Dr.  Emerson,  had  taken  him  into  Illinois,  and 
thence  into  the  Louisiana  Territory  (now  Minnesota), 
and  that  thereby,  under  the  Northwest  Territory  Ordi- 
nance of  1787  and  under  the  Missouri  Compromise  Act, 
he  had  become  a  free  man,  which  status  still  affected 
him,  when  later  his  master  took  him  back  into  the  slave 
State  of  Missouri.  In  January,  1850,  he  obtained  a 
verdict ;  but  on  appeal,  the  State  Supreme  Court  held, 
in  1852,  that  under  the  laws  of  Missouri  he  resumed  his 
character  of  slave  on  his  return,  irrespective  of  his  sta- 
tus while  out  of  the  State.  In  November,  1853,  noted 
anti-slavery  lawyers  in  St.  Louis  instituted  in  the 
United  States  Circuit  Court,  on  his  behalf,  a  suit  for 
trespass ;  and  in  order  to  vest  jurisdiction  in  this  Federal 

^  These  charges  were  made  and  rdtenited  in  the  spring  and  winter  of  1856 ;  lee 
the  New  York  Tribune  and  the  New  York  Courier,  Dec.  18,  19,  1856,  March  16, 
1857 ;  Independent,  Jan.  1, 1857 ;  Ohio  Stateeman,  April  S,  1857 ;  and  oounter-cfaargee 
that  the  case  was  instituted  and  appealed  by  the  anti-slavery  party.  Reverdy 
Johnson  said.  March  16,  1858:  "The  Senator's  insinuation  that  the  case  was 
made  by  the  master  for  the  purpose  of  obtaining  a  decision  by  the  Supreme  Court 
is  so  far  from  being  true,  that  the  suspicion,  at  the  time,  wa/i  that  the  political 
friends  of  the  Senator  —  the  abolitionists  —  had  had  it  instituted  and  brought  here 
with  that  ezdusiye  end.  But  that  was  equally  unfounded,  as  was  stated  by  Mr. 
Blair  in  open  Court."    S6th  Cong.,  1st  Sees. 

Prof.  John  W.  Burgess  in  The  Middle  Period  (1896),  449  et  eeq.,  gives  a  detailed 
account  of  the  origin  of  the  case,  obtained  Irom  A.  C.  Crane  of  St.  Louis,  a  clerk  in 
the  office  of  Dred  Scott's  counsel,  Roswell  M.  Field,  and  says :  "There  is  certainly 
not  the  slightest  evidence  in  the  history  of  the  case  that  the  case  was  anything  but  a 
genuine  proceeding,  from  beginning  to  end  conducted  by  anti-slavery  men." 


THE  DRED  SCOTT  CASE  8 

Court  on  the  ground  of  diverse  citizenship,  a  fictitious 
sale  of  Scott  was  arranged  by  Mrs.  Emerson  (who  had 
then  become  the  wife  of  a  strong  abolitionist  member  of 
Congress  from  Massachusetts,  Dr.  C.  C.  Chaffee)  to 
her  brother,  John  F.  A.  Sandford  of  New  York  (a  son- 
in-law  of  Pierre  Chouteau  of  St.  Louis).*  In  this  suit, 
a  verdict  was  found  against  Scott,  on  May  15,  1854,  on 
rulings  of  law,  and  on  writ  of  error  the  case  was  taken 
to  the  United  States  Supreme  Court.  At  this  stage,  it 
seemed  probable  that  its  decision  might  call  for  an 
expression  of  opinion  by  the  Court  as  to  the  hotly  de- 
bated question  of  the  power  of  Congress  to  exclude 
slavery  from  the  Territories.  Before  the  case  was 
docketed,  however.  Congress  had  passed  the  Kansas- 
Nebraska  Act,  on  May  30, 1854,  repealing  the  Missouri 
Compromise  Act  by  specifically  enacting  that  it  was 
"inoperative  and  void",  and  declaring  that  it  was  the 
true  intent  and  meaning  of  the  present  Act,  "not  to 
legislate  slavery  into  any  Territory  or  State  nor  to 
exclude  it  therefrom.**  By  this  legislation,  the  power  of 
Congress  over  the  subject  was  denied,  and  the  long- 
continued  efforts  of  the  Free-soilers  to  exclude  slavery 
from  the  Territories  by  Congressional  enactment  seemed 
permanently  defeated.  Had  the  slavery  party  been 
responsible  for  the  institution  of  the  Dred  Scott  Case,  it 
is  clear  that  it  had  little  to  gain  by  risking  a  ruling  from 
the  Court  on  a  point  which  Congress  had  already 
effectually  decided,  for  itself.  The  anti-slavery  party, 
on  the  other  hand,  had  an  interest  in  prosecuting  the 
appeal ;  for  an  adverse  judicial  decision  would  not  make 
their  position  any  worse  than  it  was  under  the  Kansas- 
Nebraska  Act,  and  a  favorable  decision  might  give 

^  Sandford  becftme  inaane  before  the  case  waa  decided;  and  it  was  said  that  the 
appeal  was  fought  in  the  United  States  Supreme  Court  contrary  to  his  wish;  see 
N0W  York  Courier,  Dec.  18,  1856,  Blarch  16,  1857.  The  Court  costs  were  paid  by 
Taylor  Blow  of  St  Louis,  son  of  the  man  who  sold  Scott  to  Dr.  Emerson. 


4  THE  SUPREME  COURT 

their  cause  an  effective  moral  impetus.  The  case  came 
on  for  argument  on  Monday,  February  11,  1856.  "It 
involves  questions  of  much  political  interest,"  said  the 
newspapers.  "They  are  first,  whether  a  free  black 
man  is  a  citizen  of  the  United  States,  so  as  to  be  com- 
petent to  sue  in  the  Courts  of  the  United  States ;  second, 
whether  a  slave  carried  voluntarily  by  his  master  into  a 
free  State  and  returning  voluntarily  with  his  master  to 
his  home,  is  a  free  man  by  virtue  of  such  temporary 
residence ;  thirdly,  whether  the  eighth  Section  of  the 
Missouri  Act  of  1820,  prohibiting  slavery  north  of  lati- 
tude 36'  SO",  is  constitutional  or  not."  Arguments 
were  made  for  the  negro  by  Montgomery  Blair  of  St. 
Louis  (who  had  been  retained  by  the  local  Missouri 
counsel,  Roswell  M.  Field  )^  and  for  the  alleged  owner, 

^  An  interesting  account  by  Blair  of  the  manner  in  which  he  happened  to  argue 
Uie  caae  appeared  in  the  National  Inielligeneer,  Dec.  24, 1856 :  "  From  an  imperfect 
knowledge  of  the  circumstances  attending  the  suit  for  freedom  before  the  Supreme 
Court,  prosecuted  by  Dred  Scott  (a  negro)  several  correspondents  of  the  New  York 
press  have  made  suggestions  tending  to  mislead  public  opinion.  One  intimates 
that  the  suit  was  a  contrived  case  to  operate  on  the  late  Presidential  election  by 
bringing  under  the  review  and  judgment  of  the  Supreme  Court  the  questions  which 
have  so  stirred  the  public  mind  since  the  repeal  of  the  Missouri  Compromise. 
Another  surmises  that  selfish  motives  influenced  certain  distingubhed  members  of 
the  Bar  in  declining  the  request  to  lend  me  their  assistance  in  behalf  of  my  client's 
cause ;  and  a  third  seems  to  suspect  my  own  in  conducting  it  alone.  As  the  peculiar 
attitude  of  political  affairs  at  this  moment  gives  much  interest  to  the  case,  I  will 
be  pardoneid  for  giving  a  brief  narrative  of  it.  .  .  .  As  I  perceived  that 
the  cause  involved  important  issues  which  might  possibly  be  engulphed  in  the 
great  political  controversy  then  just  emerging  in  relation  to  the  power  of  Congress 
over  the  territoiy  of  the  United  States,  I  felt  it  my  duty  to  seek  assistance,  es- 
pecially as  when  I  found  arrayed  against  me  the  Senator  from  Missouri,  and  the 
late  Attorney-General,  among  the  first  men  of  the  profession  of  the  East  and  the 
West.  I  sought  to  obtain  the  support  of  one  of  the  ablest  men  at  the  Bar  in  the 
South,  and  he  had  almost  consented  to  yield  it.  His  inclination  was  surrendered, 
not,  I  wdl  know,  from  the  selfish  motive  given  in  the  press.  I  then  applied  to 
leading  members  of  the  profession  in  the  North,  and  with  the  same  result.  The 
mercenary  motive  imputed  for  the  reluctance  shown  to  engage  in  it  is  equally  un- 
just to  all.  The  truth  is,  while  some  gave  it  up  because  th^r  previous  engagements 
interrupted*  and  others  because  the  late  application  did  not  give  time  to  make 
preparation,  all  perceived  that,  from  the  nature  of  the  case,  it  must  assume  an  aspect 
more  or  less  affecting  the  party  struggles  impending,  and  were  unwilling  on  all 
accounts  to  add  to  this  embarrassment  of  the  cause  or  that  of  the  party  with  which 
they  stood  coimected,  by  implicating  either  themselves  or  it  by  their  action  in  the 
result.    Wliile  I  do  myself  deprecate  the  state  of  things  which  brings  a  political  and 


THE  DRED  SCOTT  CASE  5 

Sandford,  by  Henry  S.  Geyer  (then  Senator  from  Mis- 
souri) and  Reverdy  Johnson.  On  February  1 8,  the  Wash- 
ington correspondent  of  the  New  York  Tribune^  James 
S.  Pike,  stated  that  a  judgment  was  expected  within  a 
fortnight,  and  that  though  nothing  could  be  positively 
known  as  to  its  character,  ^^  there  is  a  speculation  abroad 
which  almost  amounts  to  conviction  that  the  decision 
of  the  Circuit  Court  will  be  affirmed,  and  principally 
upon  the  pretext  that  Scott  voluntarily  returned  to  the 
State  of  Missouri,  by  which  act  the  authority  of  the 
owner  was  restored  and  the  condition  of  slavery  was 
resumed/'  ^  On  February  28,  Pike  wrote  that  there 
were  '^some  indications  that  a  direct  issue  may  be 
evaded,  on  the  ground  that  Scott,  being  a  colored  man, 
is  not  a  citizen  of  Missouri  in  the  legal  point  of  view,  and 
therefore  cannot  bring  an  action  properly.  This  judg- 
ment would  deny  the  jurisdiction  of  the  Supreme  Court, 
and  possibly  prevent  the  expression  of  dissenting  opin- 
ions on  the  constitutionality  of  the  Missouri  Com- 
promise ;  an  eflFort  will  be  made  to  get  a  positive  decree 
of  some  sort,  and  in  that  event,  there  is  some  hope  of  aid 
from  the  Southern  members  of  the  Court."  These 
mere  surmises  as  to  the  Court's  probable  action  were 
surprisingly  in  accord  with  the  facts.  The  Court,  after 
adjourning  during  the  month  of  March,  reconvened  on 
April  1 ;  and  Pike  writing  to  the  Tribune^  April  7,  stated 
that  the  Court  had  held  two  consultations  on  the  case, 
that  McLean,  Curtis  and  Grier  would  probably  concur 
in  favor  of  the  slave,  that  Nelson's  attitude  was  un- 
certain, that  sectional  sentiment  would  unite  the  other 
five  Judges  from  the  South  and  that  there  was  "a  mani- 

a  partiflan  influence  to  act  upon  the  public  mind  in  connection  with  this  caae,  and 
while  willing  to  avoid  it  as  much  as  possible,  I  yet  felt  it  was  my  duty  to  call  to  its 
support  all  the  aid  I  could  command.  When  I  first  opened  the  case,  therefore,  I 
announced  to  the  Court  the  regret  I  felt  in  not  having  prevailed  in  getting  an  asso- 
ciate in  the  cause." 
1  New  York  Tribuw,  Feb.  18, 20,  26, 20,  April  0, 10, 11, 12, 1850. 


6  THE  SUPREME  COURT 

fest  disposition  to  avoid  the  real  issue  by  the  intro- 
duction of  a  question  affecting  the  jurisdiction  of  the 
Court."  The  next  day,  he  wrote  that  four  of  the 
Judges  had  ah*eady  united  in  admitting  the  jurisdiction ; 
that  there  was  hope  that  the  decree  might  be  made  upon 
the  merits;  and  that  the  final  consultation  would  be 
held  on  the  next  (Wednesday)  night.  On  Thursday,  a 
correspondent  wrote  that  it  was  understood  that  a 
majority  had  declared  in  favor  of  jurisdiction  —  Mc- 
Lean, Curtis,  Grier,  Campbell  and  Catron  against 
Taney,  Wayne,  Nelson  and  Daniel;  but  that  Catron 
and  Campbell  would  join  with  the  minority  in  denying 
freedom  to  the  slave  on  the  merits  of  the  case ;  and  that 
McLean  and  Curtis,  with  Grier  concurring,  would  give 
dissenting  opinions  sustaining  the  constitutionality  of 
the  Missouri  Compromise;  "the  decree  will  be  de- 
livered next  week  and  the  opinion  will  make  a  sensa- 
tion." ^  That  this  was  merely  a  guess  upon  the  part 
of  the  newspapers  is  seen  from  the  fact  that  at  this  very 
time.  Judge  Curtis  wrote  to  his  uncle  in  Boston,  George 
Ticknor,  in  strict  confidence,  April  8,  that  "the  Court 
will  not  decide  the  question  of  the  Missouri  Compromise 
line  —  a  majority  of  the  Judges  being  of  opinion  that  it 
is  not  necessary  to  do  so."*    And  the  incorrectness 

>  Another  correspondent,  writing  Thursday,  April  10, 1856,  said :  '*The  majority 
of  the  Court  will  decide  against  him.  But  there  is  such  a  thing  as  a  minority  left 
on  the  Bench  notwithstanding  the  Court  has  been  denounced  as  the  Citadel  of 
Slaveiy;  and  unless  all  impressions  are  erroneous,  Judge  McLean  will  fortify  their 
position  with  an  opinion  that  cannot  fail  to  confound  those  who  are  prepared  to 
repudiate  the  judgments  of  Southern  Courts  and  the  practice  of  Southern  States. 
Judge  Curtis  it  is  believed  will  also  contribute  a  powerful  exposition  of  the  case  and 
of  all  the  incidental  questions  connected  with  it,  and  Judge  Grier  will  concur  with 
both.  Of  course,  the  South  will  go  in  a  body  and  probably  carry  Judge  Nelson 
with  them." 

*  Curtis,  1, 180.  Curtis  continued :  "The  one  engrossing  subject  in  both  Houses 
of  Congress,  and  with  all  the  members,  b  the  Presidency ;  and  upon  this  everything 
done  and  omitted,  except  the  most  ordinary  necessities  of  the  country,  depends. 
Judge  McLean  hopes,  I  think,  to  be  a  candidate  for  office.  He  would  be  a  good 
President,  but  I  am  not  willing  to  have  a  Judge  in  that  most  trying  position  of  being 
a  candidate  for  this  great  office." 


THE  DRED  SCOTT  CASE  7 

of  the  newspaper's  statement  as  to  the  line-up  of  the 
Judges  was  later  proved  by  Judge  Campbell's  account. 
It  api)ears  that  the  Court  was  divided  on  the  question 
as  to  whether  the  jurisdictional  point  as  to  citizenship 
was  properly  before  them  —  Taney,  Wayne,  Daniel, 
Nelson  and  Curtis  considering  it  to  be  so,  but  McLean, 
Catron,  Campbell  and  Grier  taking  the  contrary  view. 
Nelson,  however,  entertaining  doubts  asked  for  a  re- 
argument,  which  was  ordered.  May  12,  1856.^  As 
the  Presidential  campaign  was  to  occur  in  the  fall  of 
1856,  the  sentiment  very  generally  prevailed  that  the 
Court  had  acted  wisely  in  not  giving  a  decision  on  this 
delicate  question  prior  to  the  election.  And  as  the 
New  York  Courier  said,  in  praise  of  the  Court's  action : 
"The  great  tribunal  to  which  the  country  has  been 
taught  for  nearly  three  quarters  of  a  century  to  look  up 
for  the  dispensation  of  justice  upon  the  principles  of 
law,  is  not  prepared  to  rush  into  the  political  arena,  and 
ruffle  its  ermine  in  the  strife  of  politicians  and  the 
squabbles  of  demagogues."  The  Court,  however,  was 
assailed  by  the  New  York  Tribune^  which  said  that "  the 
black  gowns  have  come  to  be  artful  dodgers." 

For  six  months,  while  the  Presidential  campaign  was 
being  fought,  little  notice  of  the  case  appeared  in  the 
press  or  elsewhere.  Its  existence  on  the  Court's  docket 
had  hardly  been  known  to  the  public,  prior  to  its  first 
argument.  In  all  the  exhaustive  debates  in  Congress 
on  the  slavery  issue  throughout  the  years  1855  and  1856, 
the  case  was  not  even  adverted  to.  But  by  the  time 
when  it  was  reached  for  its  second  argument,  in  Decem- 
ber, 1856,  the  immense  effect  which  a  Court  decision 
upon  the  power  of  Congress  might  have,  in  connection 
with  future  legislation  as  to  slavery  in  the  Territories, 

^  See  Campbell's  statement  at  the  meeting  of  the  Supreme  Court  Bar  on  the 
death  of  Benjamin  R.  CurUa,  Oct.  18, 1874»  20  Wall,  x,  xi. 


8  THE  SUPREME  COURT 

was  thoroughly  realized.  **  Taking  into  consideration 
the  state  of  the  country  ...  it  may  well  be  regarded 
as  the  most  important  that  has  ever  been  brought  before 
that  tribunal/'  said  the  New  York  Courier.  "Never 
has  the  Supreme  Court  had  a  case  before  it  so  deeply 
affecting  its  own  standing  before  the  Nation.  •  .  • 
The  issue  is  of  vast  importance  in  itself,  but  there  is 
another  problem  connected  with  it  of  far  greater  con- 
sequence. It  is,  whether  the  Supreme  Court  is  a  po- 
litical Court  made  up  of  political  judges.  .  .  .  While 
yet  reeking  with  the  passions  of  the  political  arena,  this 
question  is  transferred  to  that  tribunal,  which  of  all 
others  is  supposed  to  be  clearest  of  passion — a  tribunal 
which  has,  in  time  past,  challenged  the  deference  of 
the  country  for  its  lofty  impartiality  and  serene  in- 
dependence. How  will  the  Judges  abide  the  test  now 
before  them  ?  .  .  .  The  Court,  in  trying  this  case,  is 
itself  on  trial  —  a  trial  as  vitally  involving  its  char- 
acter before  the  American  people,  as  a  confidence  in 
its  impartiality  is  vital  to  its  authority.  .  .  .  The 
Court  has  thus  far  disappointed  the  hopes  of  the 
agitators,  and  vindicated  its  own  high  and  conserva- 
tive character.  It  refused  to  throw  any  opinion  into 
the  political  arena,  last  summer.''  ^ 

The  second  argument  was  made  before  the  Court  on 
December  15, 16, 17  and  18, 1856,  by  Blair,  Geyer,  John- 
son and  by  George  Ticknor  Curtis  of  Massachusetts 
(who  had  been  retained  by  Blair,  after  the  case  was 

^  New  York  Courier,  Dec.  18, 28, 1856;  New  York  Tribune,  Dec.  19, 1856;  Alexan- 
der H.  Stephens  of  Georgia,  Dec.  15, 1856  (the  date  on  which  the  second  argument 
began)  wrote :  "  I  have  been  urging  all  the  influences  I  could  bring  to  bear  upon  the 
Supreme  Court  to  get  them  to  postpone  no  longer  the  case  on  the  Missouri  Restric- 
tion before  them,  but  to  decide  it.  They  take  it  up  today.  If  they  decide,  as  I 
have  reason  to  believe  they  will,  that  the  restriction  was  unconstitutional,  that 
Congress  had  no  power  to  pass  it,  then  the  question  —  the  political  question  —  as 
I  think,  will  be  ended  as  to  the  power  of  the  people  in  their  Territorial  Legislatures. 
It  will  be  in  effect  a  re-adjudication."  L^fe  qf  Alexander  E,  Stephem  (1888),  by 
Richard  M.  Johnson  and  William  H.  Browne. 


THE  DRED  SCOTT  CASE  9 

begun,  to  argue  the  constitutional  point  involved). 
Of  the  arguments,  a  Washington  correspondent  wrote : 
"'Mr.  Blair  is  a  close,  logical  reasoner,  a  man  of  dili- 
gent and  careful  research,  strong  power  of  thought, 
but  a  very  poor  pleader.  His  manner  is  awkward,  his 
gesticulation  particularly  painful,  and  his  utterance 
slow  and  with  the  appearance  of  being  obstructed.  But 
his  argument  would  read  well.  Reverdy  Johnson, 
Esq.,  is  an  old  stager  in  the  elocutionary  list,  and  drew  a 
crowded  chamber  to  listen  to  his  plea.  .  .  .  The 
learned  barrister  entered  into  his  argument,  with  all  the 
fervor  and  power  of  appeal  that  has  characterized  the 
most  ultra-Congressional  and  stump  speeches  for  slavery 
to  which  it  had  been  my  misfortune  to  listen.  The 
passions  of  his  audience,  the  prejudices  of  the  Judges 
were  appealed  to,  until  I  came  to  the  realization  of  the 
fact  that  our  Supreme  Court  is  composed  of  men,  mere 
men  after  all,  with  the  like  passions  and  prejudices  of 
the  masses.  .  .  .  The  closing  argument  of  Mr.  Curtis 
of  Boston  was  able,  clear  and,  to  me,  conclusive.  It 
lacked  in  one  feature  —  it  was  too  brief.  .  .  .  This, 
however,  was  not  the  fault  of  the  learned  counsellor, 
but  that  of  the  Court,  which  limited  him  to  one  hour 
and  a  quarter."  *  Of  Curtis*  argument,  his  brother. 
Judge  Curtis,  wrote  that  it  was  made  "in  a  manner 
exceedingly  creditable  to  himself  and  to  the  Bar  of 
New  England.  Judge  Catron  told  me  it  was  the  best 
argument  on  a  question  of  constitutional  law,  he  had 
heard  in  the  Court  —  and  he  has  been  here  since  General 
Jackson's  time";  and  the  New  York  Tribune  said  that 
it  "commanded  marked  attention  from  the  Court,  and 
attracted  the  largest  audience  from  Congress  that  has 
yet  assembled,  as  well  as  a  number  of  the  most  distin- 

^  Independent,  Jan.  1, 1857;  see  alao  BoeUm  Poet  and  New  York  Tribune,  Dec.  16, 
17, 18»  19, 1856,  for  full  descriptions  of  the  arguments  of  all  the  counsel. 


10  THE  SUPREME  COURT 

guished  jurists  " ;  that  it  was  "  happily  conceived  in  style 
and  manner.  The  admission  was  general  and  frank 
on  all  sides  that  Mr.  Curtis  acquitted  himself  with  em- 
inent ability.  .  .  .  He  was  congratulated  warmly  and 
by  several  Southern  Senators.*'  ^  Of  Johnson's  argu- 
ment, the  New  York  Courier  said  that  it  would  rank 
with  the  finest  efforts  made  at  the  Bar;  that  since 
Webster's  death  Johnson  had  no  superior ;  but  that  his 
argument  against  the  constitutionality  of  the  Missouri 
Compromise  was  not  convincing.  The  New  York 
Times  said  that  while  "well  considered  and  compact, 
it  was  about  as  remarkable  for  what  it  did  not  contain 
as  for  what  it  did" ;  the  Tribune  said  that  it  "partook 
more  of  the  character  of  a  stump  speech  than  that  of  a 
jurist.  It  was  brilliant,  eloquent  and  witty,  of  course; 
but  in  dealing  with  the  grave  question  of  human 
freedom  or  slavery  and  the  status  of  slavery  under  the 
Constitution,  the  learned  gentleman  substituted  sar- 
casm and  ridicule  of  opposing  views  for  the  logic,  which 
alone  can  convince  a  mind,  seeking  to  know  the  truth."  ^ 
At  the  close  of  the  argument,  the  grave  effect  of  the 
coming  decision  upon  political  conditions  was  again  re- 
flected by  Pike  in  the  Tribune ^  saying :  "The  Court  may 
think  it  wise,  under  the  existing  circumstances  of  ex- 
citement on  the  topic  throughout  the  country,  to  place 
a  decision  of  the  case  upon  a  subordinate  issue.  Yet 
the  urgency  of  the  slave-power  is  great  —  the  temper 
of  the  slave  holders  within  the  Bar  and  without 
the  Bar,  to  say  nothing  of  the  Bench,  is  raised  to 
crush  the  rebellious  spirit  of  the  North ;  and  a  decision 
of  the  Supreme  Court  is  eagerly  desired  which  shall 
promote  this  end.      Prudence  may,  however,  prevail, 

^  The  NaHonal  ItiMigenoer,  Jan.  I,  IS57,  published  the  "oonfesaedly  very  able 
argument"  of  Curtis. 

*  New  York  Courier,  Dec.  18^  19,  1856;  Nffw  York  Time$,  Dec.  80,  1856;  New 
York  Tribune,  Dec.  17,  18,  19,  20,  82,  24, 1856. 


THE  DRED  SCOTT  CASE  11 

and  the  Court  refrain  from  enunciating  a  decision  which 
would  neither  enhance  its  reputation  nor  strengthen  its 
influence/'  No  one,  he  further  said,  could  "  have  failed 
to  observe,  in  the  growth  and  development  of  the  ideas 
which  underlie  the  case  now  under  adjudication,  that 
our  judicial  decisions  upon  constitutional  questions 
touching  the  subject  of  slavery  are  rapidly  coming  to 
be  the  enunciation  of  mere  party  dogmas;  that  the 
country  is  dividing  geographically  upon  questions  of 
constitutional  law ;  and  that,  in  the  process  of  time,  if 
we  continue  a  united  people,  what  the  law  of  the 
country  and  the  Courts  is,  will  depend  upon  the 
political  ascendancy  for  the  time  being  of  the  doctrines 
of  freedom  or  slavery/'  * 

The  pendency  of  the  Dred  Scott  Case  first  became  the 
subject  of  attention  in  Congress,  when,  on  January  12, 
1857,  Benjamin  Stanton  of  Ohio  introduced  a  resolu- 
tion in  the  House  for  legislation  to  reorganize  the  Court 
"so  as  to  equalize  the  population  and  business  of  the 
several  Circuits  and  districts  and  give  to  all  sections  of 
the  Confederacy  their  equal  and  just  representation  on 
the  Supreme  Court/'*  In  an  elaborate  speech,  he 
pointed  out  the  disproportionate  representation  of 
the  South,  and  contended  that  unless  this  should  be 
changed,  the  Court's  decision  "can  have  no  moral 
power  and  cannot  command  the  confidence  of  the 
people"  and  he  added : 

^  ATtfto  York  Tribune,  Dec.  20,  1856.    For  a  reply  to  attacks  of  this  nature,  see 
BotUm  Pott,  Dec.  27, 1856. 
*S4tk  Cong.,  Sd  Sess.,  Jan.  12,  1857.   The  white  population  in  the  Circuits  was: 

1st   (Maine,  N.  H.,  Mass.,  R.  I.) 2,028,594 

2d    (N.  Y.,  Conn.,  Vt.) 8^724,826 

8d    (Pa.,  N.  J.) 2,728,669 

4th  (Dd.,  Md.,  Va.) 1,888,912 

5th  (AU.,  La.) 682,005 

6th  (No.  Car.,  So.  Car.,  Ga.) 1,894,163 

7th  (Ohio,  Ind.,  Dl.,  Mich.) 4,178,809 

8th  (Ky.,  Tenn.,  Mo.) 2,110,258 

9th  (Miss.,Arit.) 457,907 


12  THE  SUPREME  COURT 

li  the  Supreme  Court  is  to  be  called  in  to  aid  in  the  settle- 
ment of  the  great  political  questions  which  agitate  the 
country,  its  organization  becomes  a  matter  of  paramount 
importance.  If  the  South  choose  to  preserve  its  present 
partial  and  sectional  organization,  for  the  purpose  of  se- 
curing its  aid  in  the  political  contests  of  the  day,  they  will 
find  they  may  destroy  the  Court,  without  aiding  the  party  or 
section  in  whose  favor  it  decides.  ...  It  is  my  delib- 
erate conviction  that  nothing  could  do  so  much  to  weaken 
the  bonds  of  this  Confederacy,  and  destroy  the  confidence 
of  the  people  in  the  Federal  Government  and  the  value  of 
the  Union,  as  a  decision  of  that  Court  that  Congress  has  no 
sovereign  power  over  the  Territories,  and  that  it  cannot 
legislate  for  them,  either  for  the  exclusion  of  slavery,  or  upon 
any  other  rightful  subject  of  legislation. 

He  concluded  his  speech  by  contending  for  the  right 
of  a  State,  as  proclaimed  by  the  Virginia-Kentucky 
Resolutions  of  1798-1799,  to  refuse  obedience  to  any 
law  which  it  deemed  to  be  *'a  plain,  palpable  and  de- 
liberate violation  of  the  Constitution",  and  to  disre- 
gard a  decision  of  the  Court  sustaining  such  a  law. 
These  sentiments  from  an  Ohio  Whig  were  contro- 
verted by  a  Virginia  Democrat;  and  an  anti-slavery 
paper  noted  that  "the  domineering  sectionalists  of  the 
coimtry  already  begin  to  see  the  value  of  Union,  and 
nullifying  South  Carolina  already  denounces  the  move 
as  ^an  assault  upon  the  integrity  of  the  Supreme 
Court.'  "  1 

The  Court  did  not  meet  for  conference  as  to  its  de- 
cision in  the  Dred  Scott  Case,  until  late  in  February; 
for,  as  Judge  Curtis  wrote  to  his  brother :  "  Our  aged 
Chief  Justice,  who  will  be  eighty  years  old  in  a  few  days, 
and  who  grows  more  feeble  in  bocjy,  but  retains  his 
alacrity  and  force  of  mind  wonderfiilly,  is  not  able  to 
write  much.     Judge  Wayne  has  been  ill  much  of  the 

^  Nw  York  Evening  Post,  Jan.  18^  ISB7. 


THE  DRED  SCOTT  CASE  13 

winter.  Poor  Judge  Daniel  has  been  prostrated  for 
months  by  what  was  a  sufficient  cause ;  for  his  young 
and  interesting  wife  was  burned  to  death  by  her  clothes 
accidentally  taking  fire,  ahnost  in  his  presence.  So  the 
rest  of  us  have  been  kept  at  the  par,  as  Judge  Story  used 
to  say  ^double  tides/  '*  ^  But  in  spite  of  the  fact  that 
there  had  been  no  conference,  the  newspaper  corre- 
spondents in  Washington  filled  the  columns  of  their 
papers  with  detailed  rumors  as  to  the  alleged  decision 
which  the  Court  had  reached ;  and  all  agreed  that  the 
decision  would  be  adverse  to  the  plaintiff,  though  they 
differed  as  to  the  probable  grounds  on  which  it  would  be 
based.*  The  Tribune  correspondent  wrote  on  Jan- 
uary 5, 1857 :  "The  rumor  that  the  Supreme  Court  has 
decided  against  the  constitutionality  of  the  power  of 
Congress  to  restrict  slavery  in  the  Territories  has  been 
commented  upon  in  the  most  unreserved  manner  at  this 
metropolis.  It  is  very  generally  considered  that  the 
moral  weight  of  such  a  decision  would  be  about  equal 
to  that  of  a  political  stump  speech  of  a  slaveholder  or  a 
doughface.  Many  have  expressed  the  opinion  that  the 
question  would  not  be  met  'by  the  Court,  and  numbers 
are  still  of  that  way  of  thinking.  It  makes  but  little 
difference  to  slavery  whether  it  gets  a  decision  in  its 
favor  now  or  after  the  public  mind  shall  have  had  time 
to  cool.  .  .  But  it  would  be  best  for  anti-slavery  that 
the  decision  should  come  now,  while  the  popular  heart  is 
in  a  fused  condition.  The  impression  it  would  thus 
make  would  be  deeper  and  more  distinct,  and  the  whole 

1  Curiu,  I,  192,  letter  of  Feb.,  1857. 

«  New  York  Tribvns,  Jan.  4,  5,  7,  8,  9, 1857;  New  York  Courier,  Jan.  7, 1857;  /n- 
deyenderd,  Jan.  8,  1857.  As  early  as  January  %  1857,  the  Tribune's  Washington 
corvespondent  wrote  that  there  was  a  rumor  in  Washington  that  the  Court, 
with  two  dissenting,  had  reached  a  decision  adverse  to  the  constitutionality  of  the 
Missouri  Compromise,  and  said  that  there  was  no  truth  in  the  statement,  but  that 
"  whenever  judgment  shall  be  rendered  it  will  be  found,  it  the  real  merits  of  the  case 
are  considered,  that  the  tribunal  will  be  nearly  divided,  unless  extraneous  influ- 
ences should  prevaiL*' 


14  THE  SUPREME  COURT 

series  of  pro-slavery  aggressions  and  triumphs  would 
then  be  burned  into  it  together.  The  Congress,  the 
Court,  and  the  Executive  would  then  take  their  proper 
position  of  joint  association,  in  the  mind  of  the  people, 
as  confederates  in  the  work  of  extending  the  intolerable 
nuisance  of  slavery.  It  is,  therefore,  to  be  preferred 
that  the  judicial  department  shall  now  put  itself  actively 
upon  the  side  of  the  slaveholders,  while  the  mind  of  the 
country  is  warm  and  burning,  rather  than  wait  and  do  it 
by  and  by,  when  apathy  shall  have  again  overspread 
it.  •  •  .  Judicial  tyranny  is  hard  enough  to  resist 
under  any  circumstances,  for  it  comes  in  the  guise  of 
impartiality  and  with  the  prestige  of  fairness.  If  the 
Court  is  to  take  a  political  bias,  and  to  give  a  political 
decision,  then  let  us,  by  all  means,  have  it  distinctly, 
and  now.  The  public  mind  is  in  a  condition  to  receive 
it  with  the  contempt  it  merits.** 

It  is  evident  that  the  views  entertained  by  the  Court 
were  very  generally  discussed  around  Washington. 
Alexander  H.  Stephens  wrote  to  a  friend,  January  1, 
1857,  a  summary  which,  though  purporting  to  contain 
information  obtained  ^'svh  ro8a*\  was,  at  that  date,  an 
inaccurate  statement  of  the  decision  then  arrived  at  by 
the  Court :  "Today  I  send  you  the  speech  of  Curtis  on 
the  Dred  Scott  Case  before  the  Supreme  Court.  The 
speech  I  think  chaste,  elegant,  forensic ;  but  I  do  not 
think  it  convincing.  The  case  is  yet  undecided.  It  is 
the  great  case  before  the  Court,  and  involves  the  great- 
est questions,  politically,  of  the  day.  I  mean  that  the 
questions  involved,  let  them  be  decided  as  they  may, 
will  have  a  greater  political  effect  and  bearing  than  any 
others  of  the  day.  The  decision  will  be  a  marked 
epoch  in  our  history.  I  feel  a  deep  solicitude  as  to  how 
it  will  be.  From  what  I  hear,  avh  rosUy  it  wiU  be  ac- 
cording to  my  own  opinions  on  every  point,  as  abstract 


THE  DRED  SCOTT  CASE  15 

political  questions.  The  restriction  of  1820  will  be 
held  to  be  unconstitutional.  The  Judges  are  all  writing 
out  their  opinions,  I  believe,  seriatim.  The  Chief 
Justice  will  give  an  elaborate  one.  Should  this  opinion 
be  as  I  suppose  it  will,  *  Squatter  Sovereignty  speeches  * 
will  be  upon  a  par  with  ^  Liberty  speeches  *  at  the  North 
in  the  last  canvass.**  Montgomery  Blair  wrote  to  Van 
Buren,  February  5,  that :  ^^  It  seems  to  be  the  impression 
that  the  opinion  of  the  Court  will  be  adverse  to  my 
client  and  to  the  power  of  Congress  over  the  Terri- 
tories, but  I  am  assured  that  the  Court  has  not  yet  held 
a  conference  on  the  case."  * 

It  was  not  until  February  15,  that  the  Judges  first 
met  in  conference.  An  agreement  was  then  reached 
that  the  Court  should  give  no  opinion  upon  the  con- 
stitutionality of  the  Missouri  Compromise  Act,  but 
should  decide  the  case  upon  the  point  that,  whatever 
effect  the  negro's  residence  in  Illinois  and  in  the  North- 
west Territory  had  upon  his  status  there,  his  status  in 
Missouri,  after  his  return  to  that  State,  must  depend 
upon  the  law  of  Missouri;  and  that  Missouri,  by  its 
law  as  laid  down  by  its  Supreme  Court,  regarded  him  as 
a  slave,  and  hence  incapable  of  maintaining  suit  in  the 
Federal  Circuit  Court.  To  Judge  Nelson  was  assigned 
the  duty  of  writing  the  opinion  of  the  Court.  Within  a 
few  days,  however,  it  was  found  that  the  two  dissenting 
Judges  —  McLean  and  Curtis,  intended  to  write  opin- 
ions discussing  at  length  and  sustaining  the  constitu- 
tionality of  the  Compromise  Act.  This  action  forced 
the  majority  of  the  Judges  to  reconsider  the  necessity 
of  discussing  that  point  as  well,  themselves.  Judge 
Wayne   (as  he  himself  said  in  conversation,  and  as 


>  lAf4  of  AUxandm  E.  attphstu  (1888)»  by  Riduurd  M.  Johnaon  uid  Wmiam  H. 
Browne,  818;  Van  Buren  Paptf  M88,  letter  of  Bkir  to  Vui  Boren,  Feb.  5, 
1867. 


16  THE  SUPREME  COURT 

Judge  Curtis  stated  later)  "became  convinced  that  it 
was  practicable  for  the  Court  to  quiet  all  agitation  on 
the  question  of  slavery  in  the  Territories  by  affirming 
that  Congress  had  no  constitutional  power  to  prohibit 
its  introduction.  With  the  best  intentions,  with  en- 
tirely patriotic  motives,  and  believing  thoroughly  that 
such  was  the  law  on  this  constitutional  question,  he 
regarded  it  as  eminently  expedient  that  it  should  be  so 
determined  by  the  Court/' ^  Accordingly,  Wayne 
succeeded  in  persuading  Taney,  Campbell,  Daniel  and 
Catron  that  the  assignment  of  the  opinion  to  Judge 
Nelson  should  be  withdrawn,  and  that  the  Chief  Justice 
should  write  the  opinion  of  the  Court,  covering  all  the 
points  involved.  It  appeared,  however,  that  Judge 
Grier  was  still  averse  to  expressing  an  opinion  on  the 
constitutional  question;  and  consequently  Judge  Cat- 
ron took  the  unusual  course  of  writing  a  confidential 
letter  to  Buchanan,  the  President-elect,  February  19,  in 
which  he  informed  Buchanan  that  the  constitutional 
question  would  be  decided  by  the  Court  (though  he 
gave  no  statement  as  to  the  way  in  which  it  would  be 
decided),  and  in  which  he  asked  Buchanan  to  "drop 
Grier  a  line,  saying  how  necessary  it  is,  and  how  good 
the  opportunity  is,  to  settle  the  agitation  by  an  affirma- 
tive decision  of  the  Supreme  Court,  the  one  way  or  the 
other.  •  •  •  He  has  no  doubt  about  the  question  on 
the  main  contest,  but  has  been  persuaded  to  take  the 

1  CurHt,  I,  806,  884,  235,  238.  G.  T.  Curtis  sUted :  "I  never  heard  Judge  Cur- 
tis ..  .  impute  to  Judge  Wayne  or  the  Chief  Justice  any  motive,  but  the  mis- 
taken supposition  that  the  public  excitement  in  regard  to  slavery  in  the  Territories 
could  be  quieted  by  a  judicial  decision  adverse  to  the  power  of  Congress  to  prohibit 
its  introduction.  I  think  that  he  regarded  this  as  Judge  Wayne's  motive,  and  with 
good  reason ;  and  that  he  was  satisfied  that  Judge  Wayne  imparted  this  conviction 
to  the  Chief  Justice.  But  I  do  not  think  that  he  ever,  for  an  instant,  imputed  to 
Judge  Wayne  that  he  was  influenced  by  Mr.  Buchanan  to  do  what  he  did,  nor  do  I 
myself  believe  that  such  was  the  fact.  Indeed,  I  do  not  imagine  that  Mr.  Bu- 
chanan was  a  man  who  would  tamper  with  the  administration  of  justice,  and  I  am 
sure  that  the  Chief  Justice  and  Judge  Wayne  would  never  have  brooked  such  an 
attempt."    See  also  Taney,  87^392. 


L 


THE  DEED  SCOTT  CASE  17 

smooth  handle  for  the  sake  of  repose."  ^  Buchanan 
apparently  complied  with  Catron's  request,  and  wrote 
to  Grier,  who  replied,  February  23,  in  an  interesting 
letter,  giving  to  Buchanan,  in  strict  confidence,  a  full 
statement  of  the  manner  in  which  the  Judges  had  de- 
cided to  treat  the  case.  Such  a  letter  would  not  at  the 
present  time  be  regarded  as  one  of  strict  propriety; 
but  at  the  time  it  was  written,  it  was  not  an  infrequent 
occurrence  for  the  Judges  to  impart,  in  confidence,  to  an 
intimate  friend  or  relative  the  probable  outcome  of  a 
pending  case.  Judge  Curtis  had  so  written  to  his  uncle, 
as  to  this  very  case,  during  the  previous  year;  Judge 
Story  frequently  indulged  in  the  habit ;  and  it  seems  to 
have  been  regarded  as  a  proper  practice,  provided  the 
seal  of  secrecy  was  imposed.*  Grier's  letter  was  as 
follows : 

Your  letter  came  to  hand  this  morning.  I  have  taken  the 
liberty  to  show  it,  in  confidence,  to  our  mutual  friends. 
Judge  Wayne  and  the  Chief  Justice. 

^  Works  of  James  Buchanan  (190S-1011),  X,  106.  The  letter  was  as  follows: 
'*The  Died  Scott  case  has  been  before  the  Judges  several  times  since  last  Satur- 
day, and  I  think  you  may  safely  say  in  your  Inaugural:  'That  the  question  in- 
volving the  constitutionality  of  the  Mbsouri  Compromise  line  is  presented  to  the 
appropriate  tribunal  to  decide :  to  wit,  to  the  Supreme  Court  of  the  United  States. 
It  is  due  to  its  high  and  independent  character  to  suppose  that  it  will  decide  and 
settle  a  controversy  which  has  so  long  and  seriously  agitated  the  country,  and 
which  must  ultimately  be  decided  by  the  Supreme  Court.  And  until  the  case  now 
before  it  (on  two  arguments)  presenting  the  direct  question,  is  disposed  of,  I  would 
deem  it  improper  to  express  any  opinion  on  the  subject.'  A  nuijority  of  my  breth- 
ren will  be  forced  up  to  this  point  by  two  dissentients.  WiU  you  drop  Grier  a  line, 
saying  how  necessaiy  it  is,  and  how  good  the  opportunity  is,  to  settle  the  agitation 
by  an  affirmative  decision  of  the  Supreme  Court,  the  one  way  or  the  other.  He 
ought  not  to  occupy  so  doubtful  a  ground  as  the  outside  issue  —  that  admitting  the 
constitutionality  of  the  Missouri  Compromise  Law  of  1820,  still,  as  no  domicile  was 
acquired  by  the  negro  at  Fort  Snelling,  and  he  returned  to  Missouri,  he  was  not 
ttee.  He  has  no  doubt  about  the  question  on  the  main  contest,  but  has  been  per- 
suaded to  take  the  smooth  handle  for  the  sake  of  repose." 

'  It  is  evident  that  Judge  Campbell  was  ignorant  of  this  correspondence,  for  he 
wrote  to  Samuel  Tyler  (Tank's  biographer),  Nov.  24, 1870 :  "I  have  not  the  slight- 
est information  of  any  connection  between  Mr.  Buchanan  or  any  other  person,  with 
the  discussions  in  the  Court  or  the  conference,  or  with  the  preparation  of  any  opin- 
ion ol  either  of  the  Judges,  save  the  Judges  themselves." 


18  THE  SUPREME  COURT 

We  fully  appreciate  and  concur  in  your  views  as  to  the 
desirableness  at  this  time  of  having  an  expression  of  the 
opinion  of  the  Court  on  this  troublesome  question.  With 
their  concurrence,  I  will  give  you  in  confidence  the  history 
of  the  case  before  us,  with  the  probable  result.  Owing  to 
the  sickness  and  absence  of  a  member  of  the  Court,  the  case 
was  not  taken  up  in  conference  till  lately.  The  first  question 
which  presented  itself  was  the  right  of  a  n^gro  to  sue  in  the 
Courts  of  the  United  States.  A  majority  of  the  Court  were 
of  the  opinion  that  the  question  did  not  arise  on  the  pleadings 
and  that  we  were  compelled  to  give  an  opinion  on  the  merits. 
After  much  discussion  it  was  finally  agreed  that  the  merits 
of  the  case  might  be  satisfactorily  decided  without  giving 
an  opinion  on  the  question  of  the  Missouri  Compromise; 
and  the  case  was  committed  to  Judge  Nelson  to  write  the 
opinion  of  the  Court  affirming  the  judgment  of  the  Court 
below,  but  leaving  these  difficult  questions  untouched.  But 
it  appeared  that  our  brothers  who  dissented  from  the  ma- 
jority, especially  Justice  McLean,  were  determined  to 
come  out  with  a  long  and  labored  dissent,  including  their 
opinions  and  arguments  on  both  the  troublesome  points, 
although  not  necessary  to  a  decision  of  the  case.  In  our 
opinion  both  the  points  are  in  the  case  and  may  be  legiti- 
mately considered.  Those  who  hold  a  different  opinion 
from  Messrs.  McLean  and  Curtis  on  the  power  of  Congress 
and  the  validity  of  the  Compromise  Act  feel  compelled  to 
express  their  opinions  on  the  subject.  Nelson  and  myself 
refusing  to  commit  ourselves.  A  majority  including  all  the 
Judges  south  of  Mason  and  Dixon's  line  agreeing  in  the  re- 
sult, but  not  in  their  reasons,  —  as  the  question  will  be  thus 
forced  upon  us,  I  am  anxious  that  it  should  not  appear  that 
the  line  of  latitude  should  mark  the  line  of  division  in  the 
Court.  I  feel  also  that  the  opinion  of  the  majority  will  fail 
of  much  of  its  effect  if  founded  on  clashing  and  inconsistent 
arguments.  On  conversation  with  the  Chief  Justice,  I  have 
agreed  to  concur  with  him.  Brother  Wayne  and  myself 
will  also  use  our  endeavors  to  get  brothers  Daniel  and  Camp- 
bell and  Catron  to  do  the  same.  So  that  if  the  question  must 
be  met,  there  will  be  an  opinion  of  the  Court  upon  it,  if 
possible,  without  the  contradictory  views  which  would 
weaken  its  force.    But  I  fear  some  rather  extreme  views  may 


THE  DRED  SCOTT  CASE  19 

be  thrown  out  by  some  of  our  southern  brethren.  There 
will  therefore  be  six,  if  not  seven  (perhaps  Nelson  will  re- 
main neutral)  who  will  decide  the  Compromise  law  of  1820 
to  be  of  non-effect.  But  the  opinions  wiU  not  be  delivered 
before  Friday  the  6th  of  March.  We  will  not  let  any  others 
of  our  brethren  know  anything  about  the  cause  of  our  anxiety 
to  produce  this  result,  and  though  contrary  to  our  usual 
practice,  we  have  thought  it  due  to  you  to  state  to  you  in 
candor  and  confidence  the  real  state  of  the  matter. 

As  has  been  well  said,  these  letters  of  Catron  and 
Grier  were  "obviously  inconsistent  with,  and  tacitly 
refute,  the  charge  that  the  Dred  Scott  Case  was  the  re- 
sult of  a  *  conspiracy'  in  which  the  Kansas-Nebraska  bill 
was  the  first  step.  As  the  facts  are  narrated  by  Mr. 
Justice  Grier,  the  action  eventually  taken  in  the  case 
seems  to  have  been  brought  about  by  the  activity  of  the 
minority,  rather  than  of  the  majority  of  the  Court.**  ^ 
So  far  from  being  anxious  to  decide  the  constitutional 
question  involved,  the  majority  of  the  Judges  appear 
to  have  tried  to  avoid  committing  themselves  upon  the 
point,  until  forced  to  do  so  by  the  insistence  of  the 
minority  in  expressing  their  views  upon  it. 

On  March  4,  1857,  the  new  President,  James  Bu- 
chanan, came  into  office,  and  in  his  Inaugural  Address, 
after  reciting  the  fact  that  Congress  had  applied  "  to  the 
settlement  of  the  question  of  domestic  slavery  in  the 
Territories  .  .  .  this  simple  rule  that  the  will  of  the 
majority  shall  govern",  and  after  saying  that  **a  dif- 
ference of  opinion  has  arisen  in  regard  to  the  point  of 
time  when  the  people  of  a  Territory  shall  decide  this 
question  for  themselves",  he  proceeded  to  state :  "This 
is  happily  a  matter  of  but  little  practical  importance. 
Besides,  it  is  a  judicial  question  which  legitimately  be- 
longs to  the  Supreme  Court  of  the  United  States  before 
whom  it  is  now  pending,  and  will,  it  is  understood,  be 

1  Works  of  Janie$  Buchanan  (1910),  X,  106-108,  note. 


90  THE  SUPREME  COURT 

speedily  and  finaUy  settled.  To  their  decision,  in 
common  with  all  good  citizens,  I  shall  cheerfully  sub- 
mit, whatever  this  may  be,  though  it  has  ever  been  my 
individual  opinion  that,  under  the  Kansas-Nebraska 
Act,  the  appropriate  period  will  be  when  the  number  of 
actual  residents  in  the  Territory  shall  justify  the  for- 
mation of  a  Constitution  with  a  view  to  its  admission  as 
a  State  into  the  Union/'  ^ 

On  the  same  day,  Attorney-General  Cushing  ad- 
dressed the  Court  for  the  last  time  in  his  official  ca- 
pacity, the  new  President  having  appointed  Jeremiah 
S.  Black  as  Attorney-General ;  and  in  his  valedictory, 
Cushing  paid  the  following  eloquent  tribute  to  the 
Court  and  to  the  confidence  reposed  in  it  by  the  coun- 
try. "In  the  complex  institutions  of  our  country,'*  he 
said,  "you  are  the  pivot  point,  upon  which  the  rights 
and  liberties  of  all.  Government  and  people  alike,  turn ; 
or  rather,  you  are  the  central  light  of  constitutional 
wisdom  around  which  they  perpetually  revolve.  Long 
may  this  Court  retain  the  confidence  of  our  country 
as  the  great  conservators,  not  of  the  private  peace  only, 
but  of  the  sanctity  and  integrity  of  the  Constitution. 
•  .  •  To  you  and  your  venerable  Chief,  venerable 
not  more  in  years  than  in  accumulated  wisdom  of  a 
long  life  of  high  duties,  to  you,  I  say,  worthy  successors 
of  the  judicial  Fathers  of  the  Republic,  our  country 
looks  with  undoubting  confidence,  as  the  interpreters 
and  guardians  of  the  organic  laws  of  the  Union.*'* 
How  little  Cushing  foresaw  the  storm  which  was  to 
break  upon  the  Court's  head,  within  three  days  after  his 
remarks,  and  how  little  the  anti-slavery  party  was 
inclined   to   accept   Buchanan's   statement   that   the 

^  It  is  interesting  to  compare  this  with  the  statement  suggested  by  Catron  to  be 
included  in  the  Inaugural  Address,  in  Catron's  letter  to  Buchanan,  swpra. 
*  National  InMigencer,  March  6,  1857. 


THE  DRED  SCOTT  CASE  21 

question  of  slavery  in  the  Territories  was  about  to  be 
"finally  settled'*,  by  a  decision  of  the  Court,  may  be 
seen  from  the  editorial  comment  of  the  New  York  Trib- 
une, on  the  day  after  the  Inauguration.  "You  may 
'cheerfuUy  submit',  of  course,  you  will,'*  it  said,  ad- 
dressing itself  to  Buchanan,  "to  whatever  the  five 
slaveholders  and  two  or  three  doughfaces  on  the  bench 
of  the  Supreme  Court  may  be  ready  to  utter  on  this 
subject.  But  not  one  man  who  really  desires  the  tri- 
umph of  Freedom  over  Slavery  in  the  Territories  will 
do  so.  We  may  be  constrained  to  obey,  as  law,  what- 
ever that  tribunal  shall  put  forth ;  but  happily  this  is  a 
country  in  which  the  People  make  both  laws  and  Judges, 
and  they  will  try  their  strength  on  the  issue  here  pre- 
sented." Surmises  as  to  the  nature  of  the  forthcom- 
ing decision  were  made  in  a  letter  from  the  Tribune's 
Washington  correspondent,  written  March  5  (but  not 
published  until  March  9),  in  which  he  stated  that  the 
Court  had  held  a  final  consultation  that  morning,  and 
would  reach  its  opinion  the  next  day.  "  No  doubt  now 
exists  as  to  the  character  of  the  decree.  A  large  ma- 
jority will  hold  that  the  recent  decisions  of  the  Supreme 
Cpurt  of  Missouri  •  •  .  determine  the  case  .  •  .  Judges 
McLean,  Curtis  and  Grier  will  deliver  dissenting  opin- 
ions. •  •  The  expectation  is  entertained  that  this  decree 
will  satisfy  the  country,  and  Mr.  Buchanan  referred  to 
it  with  confidence  in  his  inaugural,  yesterday,  founded 
upon  a  knowledge  of  the  foreshadowed  purpose."^ 
This  letter  has  often  been  cited  as  evidence  that  there 
was  a  "leak"  as  to  the  Courtis  decision ;  but  the  letter 
itself  proves  the  contrary,  for  its  statement  of  the 
ground  on  which  the  Court  would  rest  its  decree  was 
erroneous,  and  similarly  inaccurate  was  the  statement 
as  to  Judge  Grier's  dissent. 

^  Nrno  York  Tribune,  March  5,  »»  1857. 


22  THE  SUPREME  COURT 

Owing  to  the  illness  of  the  Chief  Justice,  due  to  ex- 
posure at  the  Inauguration  ceremonies,  the  decision 
was  not  rendered  until  Friday,  March  6.  On  that  day, 
Chief  Justice  Taney  read  the  opinion  of  the  Court,  Dred 
Scott  V.  Sandford,  19  How.  393,  and  Judge  Nelson  and 
Judge  Catron  read  separate  opinions.  "  The  delivery 
of  Taney's  opinion,'*  said  the  National  Intelligencer^ 
"occupied  about  two  hours,  and  was  listened  to  with 
profound  attention  by  a  crowded  Court-room;  and 
whether  as  a  decision  of  the  Supreme  Court,  or  for  the 
constitutional  arguments  on  which  it  stands,  will  work 
a  powerful  influence  throughout  the  United  States." 
On  Saturday,  March  7,  Judges  McLean  and  Curtis 
delivered  their  elaborate  dissenting  opinions,  and  sep- 
arate opinions  were  read  by  Judges  Daniel,  Grier, 
Campbell  and  Wayne  —  "these  opinions  were  listened 
to  with  eager  interest  and  profound  respect  by  the  Court 
and  Bar  and  a  larger  number  than  usual  of  attentive 
auditors/'  ^ 

While  pamphlet  after  pamphlet,  article  after  article, 
by  lawyers  and  laymen  alike,  poured  forth  from  the 
press,  at  the  time,  regarding  the  legal  points  involved 
in  the  opinion  of  the  Court  and  of  the  various  Judges,  at 
the  present  date  the  technicalities  of  the  case  are  of  no 
particular  interest ;  and  the  interminable  discussion  as 
to  whether  the  Court  was  justified  in  deciding  on  the 
merits  of  the  case,  after  holding  that  the  Circuit  Court 
had  no  jurisdiction,  is  now  of  very  slight  interest.  It 
will  suflSce  to  say  that  six  of  the  Judges  —  Taney, 

^National  InMigmcer,  March  7,  9,  1857;  New  York  Tribune,  March  7,  1857; 
for  able  diacussions  of  the  law,  see  Legal  Renew  cf  the  Dred  Seott  Cote,  by  John 
Lowell  and  Horace  Gray»  Law  Reporter  (June,  1857),  XX ;  The  Dred  Scott  Case,  by 
Tunoihy  Tamr,  North  Amer,  Rev,  (Oct.,  1857),  LXXXV;  for  excellent  descrip- 
tions of  this  case,  see  PoLiHeal  BiHory  cf  Secession,  by  Daniel  W.  Howe  (1914) ; 
Legal  and  Historical  Status  cf  the  Dred  ScoU  Case  (1900),  by  Elbert  W.  H.  Ewing; 
see  also  Note  on  the  Dred  Scott  Case,  by  Hampton  L.  Carson,  Amer.  Law,  Rev, 
(1902),  XXXVI;  Decisive  Battles  cf  the  Law  (1907),  by  Frederick  T.  HilL 


THE  DRED  SCOTT  CASE  2S 

Wayne,  Catron,  Daniel,  Grier  and  Campbell  —  con- 
curred in  holding,  not  only  that  a  negro  could  not  be  a 
citizen  of  the  United  States,  but  also  that  Congress  had 
no  power  to  exclude  slavery  from  the  Territories; 
Nelson  confined  himself  to  the  opinion  which  he  had  pre- 
pared to  be  read  as  the  opinion  of  the  Court  (before  his 
Associates  had  decided  to  pass  upon  all  the  questions 
involved  in  the  case),  and  decided  only  that  the  Court 
was  bound  to  follow  the  law  as  laid  down  by  the  Mis- 
souri Supreme  Court,  with  reference  to  the  appellant's 
status  as  a  slave;  McLean  and  Curtis,  in  dissenting, 
delivered  voy  long  and  elaborate  opinions  taking  the 
contrary  position  on  all  three  points  involved.^ 

^  The  final  outcome  of  tlie  case  so  far  as  the  appellant  himself  was  concerned  is 
cnrioas.  During  the  argument  of  the  case,  the  fact  became  public  (theretofore  not 
generally  known)  that  the  negro  was  actually  still  owned  by  Mrs.  Emerson,  who  had 
become  the  wife  of  Calvin  C.  Chaffee,  an  abolitionist  Congressman  from  Massachu- 
setts (see  New  Hampshire  Patrioty  June  8,  1857,  stating  that  the  Springfield  (HI.) 
Arffue  "  first  exposed  this  fact  to  the  world  ").  The  New  York  Courier,  Dec.  19, 1856, 
stated  that  Sandford,  the  reputed  owner  of  the  negro,  intended  to  liberate  him, 
whatever  mi^t  be  the  result  of  the  suit.  The  New  York  Trtbuns,  March  17, 1857, 
published  a  letter  from  Dr.  Chaffee  denying  that  he  had  any  control  over  the  negro 
or  over  the  course  of  the  suit.  On  April  28,  1857,  the  Washington  Union  said : 
"Dred  Scott — This  doughty  gentleman  of  color  has  become  the  hero  of  the  day,  if 
not  of  the  age.  He  has  thrown  Anthony  Bums,  Bully  Bowlegs,  Uncle  Tom  and 
Fred  Douglass  into  temporary,  if  not  everlasting  oblivion,  annihilated  the  Missouri 
Compromise  and  almost  healed  the  wounds  of  bleeding  Kansas."  About  the  same 
time,  a  St.  Louis  paper  described  the  negro  as  follows  (see  Washington  Union, 
April  11, 1857) :  '*The  distinguished  colored  individual,  who  has  made  such  a  noise 
in  the  world  in  connexion  with  the  celebrated  case  of  SeoU  v.  Sandford  and  who  has 
become  tangled  up  with  the  Missouri  Compromise  and  other  great  subjects  —  Dred 
Scott  —  is  a  resident,  not  a  dtixen  of  St.  Louis.  He  is  well  known  to  many  of  our 
citiiens  and  may  frequently  be  seen  passing  along  Third  Street.  He  is  an  old  in- 
habitant, having  come  to  this  city  thirty  years  ago.  Dred  Scott  was  bom  in  Vir- 
ginia where  he  belonged  to  Capt.  Peter  Blow,  the  father  of  Heniy  T.  Blow  and 
Taylor  Blow  of  this  city.  .  .  .  Dred  was  at  Corpus  Christi  at  the  breaking  out 
of  the  Mexican  War,  as  the  servant  of  Captain  Bainbridge.  On  his  return  from 
Mexico,  he  applied  to  his  mistress,  Mrs.  Emerson,  then  living  near  St.  Louis,  for 
the  purchase  of  himself  and  family,  offering  to  pay  part  of  the  mon^  down  and  give 
an  eminent  dtisen  of  St.  Louis,  an  officer  in  the  Army,  as  security  for  the  payment 
of  the  remainder.  His  mistress  refused  his  proposition.  .  .  .  The  suit  was 
commenced  about  ten  years  ago,  and  has  cost  Dred  $500  in  cash,  besides  labor  to  a 
neariy  equal  amount.  It  has  given  him  a  'heap  o'  trouble*,  he  says,  and  if  he  had 
known  that  'it  was  gwine  to  last  so  long*,  he  would  not  have  brought  it.  .  .  . 
Died  does  not  appear  to  be  at  all  discouraged  by  the  issue  of  the  celebrated  case, 
although  it  dooms  him  to  slavery.    He  talks  about  the  affair  with  the  ease  of  a 


24  THE  SUPREME  COURT 

It  is  evident  that  the  Judges  did  not  realize,  in  the 
slightest  degree,  the  effect  which  their  decision  was  to 
have,  or  foresee  the  course  which  the  public  at  the 
North  would  pursue  towards  it.  "  On  the  principles  of 
the  Dred  Scott  decision,'*  wrote  Alexander  H.  Stephens, 
five  months  later,  "depended,  in  all  probability  the 
destiny  of  this  country ;  *'  but  he,  like  the  Judges,  sup- 
posed that  the  Court's  decision  would  be  accepted  by 
the  country.  Other  Democrats  seemed  to  have  a  fatuous 
confidence  in  the  Court's  power  thus  to  settle  the  slavery 
issue,  expressed  by  Judge  Wayne  in  his  opinion  as  fol- 
lows: "The  case  involves  private  rights  and  consti- 
tutional principles  of  the  highest  importance,  about 
which  there  had  become  such  a  difference  of  opinion 
that  the  peace  and  harmony  of  the  country  required  the 
settlement  of  the(n  by  judicial  decision."  No  one  on 
the  Court  comprehended  the  fact  that  the  intensity 
of  feeling  at  the  North  on  the  subject  of  slavery  was 
such  that  it  would  not  tolerate  the  settlement  of 
the  issue  "by  judicial  decision";  and  that  such  an 
attempt  at  settlement  would  only  serve  to  enflame 
rather  than  to  extinguish.  The  effect  of  the  decision 
upon  the  country,  and  especially  upon  the  North  has 
been  so  frequently  and  fully  described  by  historians 
that  it  would  be  a  work  of  supererogation  to  detail  it 
here.^    The   whirlwind   of   abuse  which   swept   upon 

veteran  litigant,  though  not  exactly  in  technical  language  and  \a  hugely  tickled  at 
the  idea  of  finding  himself  a  personage  of  such  importance.  He  does  not  take  on 
airs,  however*  but  laughs  heartily  when  talking  of '  de  fuss  dey  made  dar  in  Washing- 
ton 'bout  de  ole  nigger.*  He  is  about  fifty-five  years  old,  we  should  think,  though 
he  does  not  know  his  own  age."  See  also  Frank  Leslie* 8  Weekly,  TV,  June  27,  1857, 
for  detailed  account  of  Dred  Scott,  with  pictures  of  him  and  his  wife  and  children. 

In  May,  1857,  Died  Scott  was  conveyed  by  Dr.  Chaffee  and  Mrs.  Emerson  to 
Taylor  Blow  of  St.  Louis  for  the  purpoee  of  emancipation,  and  he  was  set  free  in 
Missouri,  within  three  months  after  the  Court  denied  him  to  possess  any  rights  as  a 
free  man. 

^  The  views  of  the  anti-slavery  men  in  general,  and  the  effect  of  the  decisions 
upon  Northern  sentiment,  are  well  iUustrated  in  the  letters  received  by  Judge 
McLean,  highly  praising  his  opinion.      John  McLean  Papere  MSS;  letters  of 


THE  DRED  SCOTT  CASE  25 

the  Court,  the  loss  of  conJBdenee  theretofore  entertained 
in  it,  and  the  ensuing  damage  to  its  reputation,  were, 
however,  in  reality,  due  more  largely  to  misunder- 
standings of  the  decision,  and  to  falsehoods  spread 
relative  to  Taney's  opinion,  than  to  the  actual  decision 
itself.  While  the  Court  was  bitterly  assailed  for  ren- 
dering any  decision  upon  the  constitutional  point,  after 
holding  that  the  Circuit  Court  had  no  jurisdiction,  the 
correctness  of  its  action  in  so  doing  was,  after  all,  a 
purely  legal  question.^  The  most  serious  attacks 
upon  the  Court  arose  from  a  gross  and  willful  perversion 
of  a  sentence  in  the  Chief  Justice's  opinion,  which 
certain  violent  anti-slavery  papers  of  New  York  spread 
throughout  the  country,  —  the  charge,  reiterated  again 
and  again,  that  Taney  had  stated  in  his  opinion  that 
the  ^' negro  has  no  rights  which  the  white  man  was 
bound  to  respect/*  These  newspapers  never  printed 
the  corrections  of  this  false  charge,  inmiediately  and 
persistently  made  by  supporters  of  the  Court,  who 
pointed  out  that  Taney  had  never  stated  this  sentiment 
as  expressing  his  own  view,  but  had  merely  recited  it 
historically  as  the  view  held  by  men  in  general,  in  the 
eighteenth  century.*  By  the  brazen  propagation  of  this 
lie  the  country  was  long  deceived ;  and  the  prejudices  and 
passions  aroused  against  the  Court  and  its  decision 
were  due  far  more  to  Taney's  aUeged  statement  than  to 
the  point  of  law  decided  by  him.    It  was  not  until  the 

J.  H.  Martindale  of  New  York,  March  21,  John  Allison  of  Ohio,  March  21,  Oliver 
H.  Browning  of  Illinoie,  March  23,  Jacob  CoUamer  of  Vermont,  April  1,  C.  C. 
Bradley  of  Vermont,  April  20, 1857. 

^  The  Washington  correspondent  of  the  New  York  Courier  wrote,  March  12, 1857 
(see  issue  of  March  16) :  "I  discover  that  lawyers  are  disposed  to  take  a  very  prac- 
tical and  professional  view.  .  .  .  They  say  there  was  but  one  point  decided, 
namely  that  of  the  citizenship  of  the  colored  man.  Beyond  that,  all  is '  leather  and 
prunella. '  .  .  .  The  stump  speech  of  the  Chief  Justice  was  entirely  gratuitous, 
without  one  partide  of  auUiority." 

'  See  example  of  correction  of  this  falsehood,  Ohio  'Statesman,  May  18^  1857. 
''B^ubUcan  Lie  No.  1." 


26  THE  SUPREME  COURT 

year  1886  that  the  Independent^  of  New  York,  which 
had  been  the  chief  offender  in  spreading  the  falsehood, 
recanted  and  said :  "  It  is  but  just  to  the  memory  of 
Chief  Justice  Taney,  as  well  as  to  the  Supreme  Court,  to 
note  the  fact  that  the  whole  language,  including  these 
words,  is  simply  that  of  historical  narration.  .  •  . 
Chief  Justice  Taney  did  not  say  it  in  1857,  and  the 
Supreme  Court  did  not  say  it.  What  Chief  Justice 
Taney  said  was  by  way  of  narrative,  relating  to  a  period 
prior  to  the  adoption  of  the  Constitution.'*  ^ 

The  manner  in  which  the  sentiment  of  the  country 
was  aroused  by  the  Northern  press  may  be  gathered 
from  a  few  fairly  illustrative  extracts  from  the  most 
influential  anti-slavery  papers.  Immediately  after  the 
decision,  the  New  York  Tribune  commenced  an  on- 
slaught, which  it  continued  practically  every  day  for  a 
month.*  On  March  6,  its  Washington  correspondent 
wrote  that :  "The  whole  slavery  agitation  was  reopened 
by  the  proceedings  in  the  Supreme  Court  today,  and 
that  tribunal  voluntarily  introduced  itself  into  the 
political  arena.  .  •  •  Much  feeling  is  excited  by  this 
decree,  and  the  opinion  is  freely  expressed  that  a  new 
element  of  sectional  strife  has  been  wantonly  imposed 
upon  the  country."  The  next  day,  he  wrote  that  its 
character  as  an  impartial  judicial  body  had  gone.  "  If 
the  action  of  the  Court  in  this  case  has  been  atrocious, 
the  manner  of  it  has  been  no  better.  The  Court  has 
rushed  into  politics,  voluntarily  and  without  other 
purpose  than  to  subserve  the  cause  of  slavery.  They 
were  not  caUed  upon,  in  the  discharge  of  their  duties, 
to  say  a  word  about  the  subject.  .  •  •  The  vote 
stood  seven  to  two  —  the  five  slaveholders  and  two 


^  Independent,  April  S,  1886. 

<  See  New  York  Tribune,  especially  March  7,  9, 10, 11»  12»  10, 17, 19,  20,  21,  25, 
1857. 


THE  DRED  SCOTT  CASE  27 

doughfaces  making  up  the  seven.  Their  cunning  chief 
had  led  the  van,  and  plank  by  plank  laid  down  a  plat- 
form of  historical  falsehood  and  gross  assumption,  and 
thereon  they  all  stood  exultingly,  thinking,  or  feigning 
to  think,  that  their  work  would  stand  during  the  re- 
mainder of  their  lives  at  least/*  Another  correspond- 
ent wrote  that  the  decision  "has  been  heard  and  com- 
mented upon  here  with  mingled  derision  and  contempt. 
If  epithets  and  denunciation  could  sink  a  judicial  body, 
the  Supreme  Court  of  the  United  States  would  never 
be  heard  of  again.  Chief  Justice  Taney's  opinion  was 
long,  elaborate,  able  and  Jesuitical.  His  arguments 
were  based  on  gross  historical  falsehoods  and  bold 
assumptions  and  went  the  whole  length  of  the  Southern 
doctrine/'  Editorially,  the  Tribune  said  that:  *'The 
long  trumpeted  decision  .  •  .  having  been  held  over 
from  last  year  in  order  not  too  flagrantly  to  alarm  and 
exasperate  the  Free  States  on  the  eve  of  an  important 
Presidential  election,  ...  is  entitled  to  just  so  much 
moral  weight  as  would  be  the  judgment  of  a  majority 
of  those  congregated  in  any  Washington  bar-room.  It  is 
a  dictum  prescribed  by  the  stump  to  the  Bench."  Three 
days  later,  it  said :  '*No  wonder  that  the  Chief  Justice 
should  have  sunk  his  voice  to  a  whisper,  conscious,  as 
he  must  have  been,  that  the  decision  which  he  promul- 
gated had  been  arrived  at  on  grounds  totally  different 
from  those  indicated  in  the  opinion  —  that  opinion 
being  but  a  mere  coUation  of  false  statements  and 
shallow  sophistries,  got  together  to  sustain  a  foregone 
conclusion,  —  knowing  that  he  was  engaged  in  a  pitiful 
attempt  to  impose  upon  the  public.  However  feeble 
his  voice  might  have  been,  what  he  had  to  say  was  still 
feebler."  The  next  day,  it  said:  "Until  that  remote 
period  when  different  Judges  sitting  in  this  same  Court 
shall  reverse  this  wicked  and  false  judgment,  the  Con- 


28  THE  SUPREME  COURT 

stitution  of  the  United  States  is  nothing  better  than  the 
bulwark  of  inhumanity  and  oppression."  Equal  with 
the  Tribune  in  its  influence  on  the  anti-slavery  senti- 
ment of  the  North  was  the  New  York  Independent, 
which  reached  the  great  Congregationalist  community, 
and  whose  colunms  were  filled  with  invective  against 
the  Court.*  On  the  day  after  the  decision,  its  Wash- 
ington correspondent  wrote:  "If  there  be  not  aroused 
a  spirit  of  resistance  and  indignation,  which  shall  wipe 
out  this  decision  and  all  its  results,  as  the  lightning 
wipes  out  the  object  it  falls  upon,  then  indeed  are  the 
days  of  our  Republic  numbered,  and  the  patriot  shall 
see  light  only  beyond  the  storms  of  revolution  and 
blood.  .  .  .  The  Missouri  Compromise  was  a  defeat 
of  freedom.  The  Compromise  of  1850  was  a  yet  more 
humiliating  surrender ;  but  it  was  left  to  the  Supreme 
Court  to  complete  the  utter  subjugation  and  exter- 
mination of  all  that  remained  of  the  protesting  voice  of 
liberty.  ...  In  all  this,  I  counsel  no  revolutions. 
...  I  invoke  only  in  the  name  of  Truth,  which  yet 
lives,  that  force  of  public  sentiment  which  makes  and 
unmakes  Courts  and  decisions,  as  easily  as  it  makes  and 
unmakes  Presidents  and  Legislatures.  ..."  Edi- 
torially, it  inveighed  against  Taney's  "stump  speech 
spoken  for  political  eflfect"  and  the  wickedness  of  the 
decision  —  the  attempt  "to  foist  this  new  and  atrocious 
doctrine  into  the  Constitution" ;  "  this  vain  attempt  to 
change  the  law  by  the  power  of  Judges  who  have 
achieved  only  their  own  infamy."  It  said  that :  "The 
reverence  for  the  Supreme  Court,  which  has  been  so 
widely  cherished,  is  a  reverence  for  law.  It  is  a  rever- 
ence which  assumes  that  the  Judges  of  a  tribunal,  so 
far  removed  from  the  shifting  winds  of  popular  excite- 
ment, and  so  carefully  guarded  against  the  intrusion  of 

^  Independent,  March  12, 10, 26,  Dec  17, 1857. 


THE  DRED  SCOTT  CASE  29 

factions  and  political  influences,  will  be  under  no  violent 
temptation  to  betray  their  trust'* ;  and  that  the  Judges 
now  having  debased  themselves,  the  question  had  arisen 
as  to  whether  Judges  ought  not  to  be  chosen  by  popular 
election.  Later,  in  an  editorial  headed,  "The  Decision 
of  the  Supreme  Court  is  the  Moral  Assassination  of  a 
Race  and  Cannot  be  Obeyed",  it  said:  "The  moment 
the  Supreme  Judicial  Court  becomes  a  Court  of  injus- 
tice, a  Court  to  carry  schemes  of  oppression  against 
classes  of  men,  by  forced  constructions  of  the  Constitu- 
tion, that  moment  its  claim  to  obedience  ceases.  The 
moment  it  becomes  the  Court  of  a  political  party,  and 
not  of  the  United  States,  and  promulgates  falsehoods, 
that  moment  its  decisions  cease  to  be  binding,  and 
impeachment,  not  obedience,  belongs  to  it.  .  .  .  The 
decision  is  a  deliberate  iniquity.  It  is  not  a  mistake 
.  .  .  but  it  is  a  deliberate,  willful  perversion,  for  a 
particular  purpose,  and  that  purpose,  the  sanction 
and  perpetuity  of  human  slavery.  If  the  people  obey 
this  decision,  they  disobey  God."  The  New  York 
Evening  Post  said  that  the  consequences  of  the  decision 
"  are  beyond  the  reach  of  human  calculation",  and  that 
"the  moral  authority  and  consequent  usefulness  of  that 
tribunal,  under  the  present  organization,  is  seriously 
impaired,  if  not  destroyed.  ...  A  majority  of  its 
members  have  consented  to  become  parties  to  a  com- 
bination with  the  Administration  to  transfer  the  political 
control  of  the  government  to  the  hands  of  the  slave 
oligarchy."  ^  The  New  York  Courier  published  a 
series  of  attacks,  but  of  a  less  extreme  character.*  On 
the  day  after  the  decision,  its  owner,  General  Webb, 
wrote  from  Washington  of  the  "sectional  mummeries  of 

1  New  York  Evening  Poet,  March  7, 10, 11, 12, 18, 14,  26, 1857. 

'  New  York  Courier,  lee  editoriala  and  letters  from  Washington  by  its  owner.  Gen. 
James  Watson  Webb,  and  by  "Inspector",  Biarch  7,  9,  10,  11,  12,  18,  16,  17,  19, 
1857. 


so  THE  SUPREME  COXJRT 

a  Court  which  had  become  a  mere  party  machine",  and 
said  that  while  all  good  citizens  would  submit  to  the  de- 
cision, yet  Congress  and  the  people  must  prevail.  Later, 
he  wrote  that  the  Court,  which  had  been  hitherto 
"considered  the  mainstay  of  order  and  conservatism  in 
the  country,  has  been  seized  by  an  unreasoning  and 
desperate  fanaticism  on  one  subject,  which  renders  it 
blind  to  precedents,  to  the  well-established  principles  of 
law,  to  justice  and  humanity" ;  and  that  henceforward 
it  could  never  be  spoken  of  "with  that  veneration  and 
respect  which  the  Nation  has  delighted  to  accord  it." 
On  March  11,  the  Courier  said  that  the  South  would 
find  no  benefit  from  the  decision  which  would  only 
multiply  agitation  on  the  slavery  question.  "The 
volunteered,  sectional  and  partisan  opinions  .  .  . 
are  in  all  respects  unfortunate  —  unfortunate  for  the 
reputation  and  authority  of  the  Court  —  unfortunate 
for  the  harmonious  relations  of  the  Free  and  Slave 
States  —  and  unfortunate  for  the  character  of  the 
country  .  .  .  fraught  with  immense  mischief."  On 
March  12,  it  expressed  a  fear  lest  the  Free  States  should 
assert  their  sovereignty  to  the  extremest  limit,  and  said 
that  if  this  injured  the  Slave  States,  the  latter  "will 
only  have  slavery-devoted  and  innovating  Judges  to 
thank  for  it."  On  March  13,  it  urged  that  the  compo- 
sition of  the  Court  and  the  Circuits  be  remodeled. 
After  pointing  out  the  great  preponderance  of  white 
persons  in  the  four  Free-soil  Circuits  as  compared  with 
the  five  Slavery  Circuits,  it  said:  "In  its  present  sec- 
tional form,  it  is  necessarily  the  object  of  suspicion.  To 
believe  implicitly  in  its  perfect  candor  and  impartiality 
of  judgment  upon  questions  of  a  sectional  bearing  re- 
quires an  effort,  which,  however  the  heart  in  its  charity 
might  allow,  the  understanding,  with  its  appreciation  of 
human  nature  as  it  is,  utterly  refuses.    Among  a  free 


THE  DRED  SCOTT  CASE  SI 

people,  the  authority  of  a  tribunal  of  law  resides  more  in 
its  moral  power  than  in  the  civil  force  which  stands  at 
its  back,  and  the  very  first  requisite  to  the  possession  of 
this  moral  power  is  complete  confidence  in  its  impar- 
tiality." 

The  anti-slavery  press  throughout  the  North  and 
Central  West  followed  the  example  of  these  leading 
New  York  papers  and  indulged  in  even  greater  scurrility 
and  abuse. 

In  most  histories  of  the  period,  the  eflfect  of  the  Dred 
Scott  decision  has  been  portrayed  in  a  somewhat  dis- 
proportionate and  exaggerated  manner  by  omitting 
reference  to  the  large  body  of  newspapers  which  sup- 
ported or  defended  the  decision.  Moreover,  some  papers 
like  the  TimeSy  Herald^  Commercidl  Advertiser  and 
Journal  of  Commerce^  in  New  York,  took  a  conservative 
stand ;  and  while  impressed  with  the  seriousness  of  the 
issue  thrust  upon  the  country  by  the  Court's  decision, 
they  deplored  the  violence  of  the  Tribune  and  its 
imitators.^  The  Times  said,  March  8,  that  while  all 
looked  with  respect  and  some  degree  of  reverence 
on  the  Court,  ^'the  circumstances  attending  the  present 
decision  have  done  much  to  divest  it  of  moral  influ- 
ence and  to  impair  the  confidence  of  the  country. 
•  .  .  Among  jurists,  it  is  not  considered  to  settle 
anything  more  than  the  denial  of  jurisdiction.  .  •  . 
But  it  exhibited  the  eagerness  of  the  majority  of  that 
tribunal  to  force  an  opinion  upon  the  country  and  to 
thrust  itself  into  the  political  contests."  The  next  day, 
it  said  that  while  there  would  be  no  forcible  opposition, 
the  doctrines  of  the  decision  would  germinate  "  the  seeds 
of  discontent  and  contest  and  disaster  hereafter.  •  .  • 
It  has  laid  the  only  solid  foundation  which  has  ever  yet 

^  New  York  Times,  March  8,  9,  1857;  New  York  Herald,  March  7,  8»  12,  18»  14. 
15, 17»  1857 ;  New  York  Journal  qf  Commerce,  Biaich  11, 12»  1857. 


32  THE  SUPREME  COURT 

existed  for  an  Abolition  Party,  and  it  will  do  more  to 
stimulate  the  growth  of  such  a  party  than  has  been 
done  by  any  other  event/*  The  Herald  said,  March  7, 
that  the  decision  would  be  accepted  as  the  law,  but  "it 
will  profoundly  affect  the  public  mind  in  regard  to  the 
general  question  of  slavery/*  The  next  day,  it  termed 
the  decision  a  "bombshell  from  the  Supreme  Court**, 
which,  "of  vital  importance  ...  at  a  single  blow 
shivers  the  anti-slavery  platform  of  the  late  great 
Northern  Republican  party  into  atoms.  .  .  .  The 
supreme  law  is  expounded  by  the  supreme  authority, 
and  disobedience  is  rebellion,  treason  and  revolution." 
Later,  it  said  that  some  of  the  anti-slavery  journals, 
"stunned  by  these  late  tremendous  blows  from  the 
Supreme  Court,  are  counseling  an  organized  resistance. 
But  that  is  folly,  treason  and  rebellion.**  And  it 
stated  that  one  of  the  inevitable  party  issues,  on  which 
every  Presidential  contest  would  turn,  would  hencefor- 
ward be  —  the  reformation  of  the  Supreme  Court,  so  as 
to  reverse  the  majority.  The  New  York  Commercial 
Advertiser  very  candidly  said  that,  while  it  dissented 
from  the  opinion,  "no  one  had  a  right  to  impugn  the 
motives  of  the  Court,  and  to  do  so  is  alike  unjust  and 
unwise.  Least  of  all  is  it  patriotic  to  endeavor  to  bring 
the  highest  tribunal  of  the  republic  into  contempt,  be- 
cause it  pronounced  decisions  at  variance  with  our  views 
or  wishes.  Such  a  course,  though  it  may  be  congenial 
with  our  temper  at  the  moment,  is  sadly  perilous  to  the 
common  weal,  the  interest  of  freedom  and  free  govern- 
ment being  always  best  upheld  by  maintaining  respect 
for  the  oflScers  of  the  government,  especially  those  of 
the  Judiciary.*'  The  New  York  Journal  of  Commerce^ 
a  strong  Democratic  paper,  attacked  the  "  indecent  and 
contemptible  calumnies**  of  the  abolition  press,  and 
deplored  the  impugning  of  the  "honesty  and  purity  of 


THE  DRED  SCOTT  CASE  SS 

the  great  constitutional  lawyers"  on  the  Bench.  It 
stated  that  '^outside  the  limited  circle  of  disappointed 
factionists,  whose  vocation  it  is  to  foment  strife  and 
discord  to  subserve  individual  and  selfish  ends'^  the 
decision  would  be  respected,  honored  and  obeyed ;  and 
that  this  *' authoritative  and  final  settlement  of  the 
grievous  sectional  issues"  would  be  hailed  with  satis- 
faction by  all,  "except  the  demagogues  who  wish  to 
kindle  flames  of  discord  and  fanaticism." 

Other  Democratic  papers  in  the  North  were  vigorous 
in  support  of  the  decision,  and  deplored  the  virulence  of 
the  "Black  Republican  press,  brimful  of  elements  of 
sedition,  treason  and  insurrection."  ^  "The  Tribune 
may  rave,  and  fanaticism  make  earth  hideous  with  its 
bowlings,  but  all  in  vain,"  said  the  Pennsylvanian. 
"There  are  certain  points  which  are  settled  and  beyond 
the  reach  of  the  fanatics  of  the  Nation.  •  .  .  The  de- 
cision is  a  closing  and  clinching  confirmation  of  the 
settlement  of  the  issue.  .  .  .  Whoever  now  seeks  to 
revive  sectionalism  arrays  himself  against  the  Consti- 
tution, and  consequently  against  the  Union."  A 
leading  New  Hampshire  paper  said :  "The  black  press 
and  pulpit  unite  in  reviling  the  Court  and  denouncing 
this  decision.  .  .  .  The  Black  Republicans'  creed 
and  purposes  are  at  war  with  the  Constitution,  are 
treasonable,  and  contemplate  the  overthrow  of  the 
Union.  .  .  .  Let  the  patriotic  of  all  parties  think  of 
the  immense  consequence  of  this  Court  to  our  National 
peace  and  harmony,  and  put  the  seal  of  reprobation  on 
those  who  would  destroy  it  or  lessen  its  authority.  The 
reflecting  will  be  astonished  at  the  language  of  the 

>  See,  for  example^  Penmyhanianp  March  10»  11»  12»  1867;  New  Hampihvr$  Pa- 
triot, Bfarch  18,  25,  June  3,  1857;  MUwaukee  Daily  Newt  (Wise.);  Rock  leland 
Argue  (HI.) ;  SfringfiM  SUUe  Regieter  (111.) ;  Detroit  Free  Frees  (Mich.) ;  Fortland 
Eaetem  Argue  (Me.) ;  Mieeouri  Republiean,  quoted  in  Waehington  Union,  April  7, 
14. 16,  May  1, 1857 ;  Ohio  Stateeman,  March  li^  9S,  May  IS,  14. 16, 1857. 

VOL.  in  —  2 


34  THE  SUPREME  COURT 

press  as  to  the  tribunal  which  has  performed  such 
priceless  service,  and  given  so  much  stability  to  law  and 
strength  to  our  National  politics/'  "Pernicious  and 
anarchical  as  have  hitherto  been  the  *  higher  law '  here- 
sies," said  the  Boston  Posty  "we  hazard  nothing  in  say- 
ing that  none  have  been  more  pernicious  or  full  of 
anarchy  than  those  which  a  few  days  have  elicited  as  to 
the  Supreme  Court."  A  prominent  Illinois  paper  said 
that :  "  No  decision  for  a  generation  has  created  a  deeper 
sensation.  .  .  .  This  inquisition,  blind  and  mad  as  it 
is,  which  has  foisted  itself  into  the  pulpit  and  the  forum, 
may  be  soon  expected  to  sit  with  veiled  face,  in  mocking 
of  common  sense  and  common  decency,  upon  the  last 
relic  of  constitutional  liberty.  A  blow  aimed  at  the 
third  great  branch  of  the  government  —  the  Judiciary 
—  is  tantamount  to  a  blow  struck  at  the  heart  of  all  law 
and  order."  A  leading  Ohio  paper  denounced  the  Re- 
publican papers  for  their  attack  on  Taney,  "this  vener- 
able father  in  the  law,  strong  in  mind  but  weak  in  body, 
tottering  on  the  brink  of  an  honored  grave,  with  no 
fame  to  expect  but  that  which  erudition  and  judicial 
ability  have  already  obtained  for  him",  and  for  their 
attempt  to  destroy  confidence  in  the  Court.  "This 
bulwark  of  self-imposed  law  is  in  the  hearts  of  the 
people.  To  teach  the  people  to  laugh  it  to  scorn  is  to 
weaken  the  bastions  and  mine  the  fortress." 

The  strongest  defense  of  the  Court  appeared  in  a  long 
series  of  editorials,  during  April  and  May,  in  the  Ad- 
ministration paper,  the  Daily  Uniony  of  Washington. 
On  the  day  after  the  decision,  it  said  that  it  would 
"exert  the  most  powerful  and  salutary  influence 
throughout  the  United  States" ;  on  March  11,  it  said : 
"If  the  sectional  question  be  not  now  settled,  then  we 
may  despair  of  the  Republic.  We  believe  it  is  settled, 
and  that  henceforth  sectionalism  will  cease  to  be  a 


THE  DRED  SCOTT  CASE  S5 

dangerous  element  in  our  political  contests.  •  •  •  Of 
course,  it  is  to  be  expected  that  fanaticism  will  rave 
and  clamor  against  the  decision  of  the  Supreme  Court. 
But  fanaticism  ceases  to  be  a  formidable  enemy,  when 
it  seeks  to  measure  strength  with  the  Union-loving 
spirit  of  the  people,  sustained  or  confirmed  by  the  great 
arbiter  of  constitutional  questions."  The  next  day,  it 
said  that  it  was  confident  that  Taney's  opinion  **  will  be 
regarded  with  soberness  and  not  with  passion ;  and 
that  it  will  thereby  exert  a  mighty  influence  in  diffusing 
sound  opinions  and  restoring  harmony  and  fraternal 
concord  throughout  the  country.' '  It  deplored  the 
"unbridled  license  of  the  press,  and  the  vilification  by 
Northern  papers,  and  reciprocation  by  radical  Southern 
papers."  "There  must  be  toleration,  there  must  be 
forbearance,"  it  concluded.  Neither  toleration  nor  for- 
bearance, however,  seemed  possible,  in  the  existing 
bitterness  of  the  political  situation  —  and  the  Union'' s 
later  editorials  gave  increasing  evidence  of  this.^  On 
March  18,  it  spoke  of  the  "ribald  vituperations  against 
the  Court  which  made  infamous  some  of  the  Republican 
journals."  On  March  26,  in  an  editorial  entitled  the 
"Black  Republican  Crusade",  it  pointed  out  the  neces- 
sity of  retaining  respect  for,  and  confidence  in,  the 
Court  —  a  doctrine  which  it  said,  had  long  been 
preached  heretofore  in  the  North;  and  it  asked:  "Is 
the  whole  structure  of  our  government  to  be  subverted, 
because  a  negro  is  determined  by  the  highest  judicial 
authority  of  the  land  not  to  be  a  citizen  within  the 
meaning  of  the  Constitution?"  On  April  11,  in  an 
editorial  entitled  "The  Higher  Law  Against  the  Con- 

^  See  DaUy  Union,  March  14, 17, 1857,  saying  that  the  "Blade  Republican  press 
literally  howl  with  rage  .  .  .  the  vile  epithets,  reproaches  in  the  treasonable 
calumnious  papers  of  the  North";  March  21, 1857,  defending  the  Judges  from  the 
charges  of  acting  politically;  March  28,  editorial  on  '*the  Supreme  Court  and  the 
New  York  Tribune" ;  April  2, editorial  on  "What  CourU  Decide" ;  May  1,  editorial 
on  "The  Supremacy  ol  the  Law." 


S6  THE  SUPREME  COURT 

stitution",  it  stated  that  there  was  now  but  one  alter- 
native —  "obedience  to  the  Constitution,  or  resistance 
to  the  supreme  law  of  the  land/*  A  few  papers  ex- 
pressed more  calm  and  patriotic  views.  The  National 
Intelligencer  said,  on  May  29:  "That  the  Supreme 
Court  should  have  been  called  at  all  to  pronounce  upon 
questions  involved  in  political  controversy  must  be  a 
matter  of  regret  to  all  who  would  desire  to  preserve 
that  high  tribunal,  not  only  from  the  influence  of  parti- 
san bias  in  pronouncing  its  decisions,  but  from  even  the 
suspicion  of  it,  on  the  part  of  any  considerable  portion 
of  the  commimity.  .  .  .  Whatever  its  decision  might 
have  been,  it  became  inevitable,  under  these  circum- 
stances, that  one  political  party  or  another,  according 
to  the  views  or  prejudices  of  its  members,  was  destined 
to  be  dissatisfied  with  the  result ;  but  the  duty  of  ac- 
quiescing in  that  result,  whether  equally  acknowledged 
by  both  parties  or  not,  was  equally  imperative  on  both, 
and  must  remain  so,  as  long  as  the  forms  of  law  receive 
that  respect  to  which  they  are  entitled/'  And  Har- 
per^s  Weekly  said  with  great  sanity:  "The  idea  that 
any  decision  of  the  Supreme  Court  can  reestablish  slav- 
ery in  the  Free  States  is  a  bugbear  —  an  absurdity. 
The  only  result,  therefore,  that  we  can  arrive  at  is, 
that,  however  repugnant  the  Dred  Scott  decision  may 
be  to  the  feelings  of  a  portion  of  the  Northern  States,  it 
can  have  no  practical  eflfects  injurious  to  our  tranquil- 
lity or  to  our  institutions.  The  subject  of  slavery  will 
be  left  to  be  decided,  as  it  ultimately  must  be,  by  the 
laws  which  govern  labor  and  production.  It  is,  indeed, 
most  devoutly  to  be  desired  that  this  great  question 
should  be  left  to  be  determined  exclusively  by  those 
laws,  free  from  the  interference  of  the  hotheads  of 
the  press  and  of  the  pulpit.  If  we  would  but  permit 
Nature  to  have  her  own  way  for  only  a  few  short  years ! 


•      •      • 


THE  DRED  SCOTT  CASE  S7 

When  political  agitation  shall  have  ceased, 
and  the  fires  of  religious  fanaticism  are  burned  out, 
these  are  the  points  on  which  this  matter  must  ulti- 
mately be  determined.  .  .  .  We  have  no  doubt  how 
it  will  finally  be  decided ;  nor  have  we  any  doubt  how  it 
would  have  been  decided,  years  ago,  if  every  agency 
that  human  wit  can  devise  had  not  been  systematically 
employed,  at  once  to  excite  the  passions,  and  blind  the 
judgment  of  those  to  whom  alone  the  disposition  of  the 
question  rightfully  belongs/'^ 

Had  the  country  been  influenced  by  editorials  like 
these,  rather  than  by  the  hysterical,  virulent  and  false 
outpourings  of  the  Tribune  and  the  Independent^  the 
Court's  action  would  have  had  less  efiFect  upon  history, 
but  it  was  otherwise  destined.  The  surprise  with  which 
the  attitude  of  the  Republican  press  was  greeted  by 
the  Democrats  shows  conclusively  how  little  they 
realized  the  insidious  effect  upon  public  sentiment  at 
the  North  produced  by  the  undermining  campaign 
against  the  Court  which  had  been  conducted  by  the 
anti-slavery  leaders  in  Congress  for  the  past  seven  years. 
And  how  little  Chief  Justice  Taney  himself  realized 
the  extent  of  the  passions  aroused  by  his  opinion  was 
seen  in  a  letter  written  to  Ex-President  Pierce,  August 
29,  1857 :  * 

You  see  I  am  passing  through  conflict,  much  like  the  one 
which  followed  the  removal  of  the  deposits,  and  the  war  is 
waged  upon  me  in  the  same  spirit  and  by  many  of  the  same 
men  who  distinguished  themselves  on  that  occasion  by  the 
unscrupulous  means  to  which  they  resorted.  At  my  time  of 
life  when  my  end  must  be  near,  I  should  have  rejoiced  to 
find  that  the  irritating  strifes  of  this  world  were  over,  and 
that  I  was  about  to  depart  in  peace  with  all  men  and  all  men 
in  peace  with  me.     Yet  perhaps  it  is  best  as  it  is.     The  mind 

1  National  InMigeneer,  May  29,  1857;  Harper's  Weekly,  March  28,  1857. 
>  See  Amer.  Hist,  Rev,  (1004),  X. 


38  THE  SUPREME  COURT 

is  less  apt  to  feel  the  torpor  of  age  when  it  is  thus  forced  into 
action  by  public  duties.  And  I  have  an  abiding  confidence 
that  this  act  of  my  judicial  life  will  stand  the  test  of  time  and 
the  sober  judgment  of  the  country,  as  well  as  the  political 
act  of  which  I  have  spoken.  Your  successor  has,  I  think, 
a  difficult  time  before  him.  Symptoms  of  discord  are  al- 
ready appearing. 

While,  with  the  lapse  of  time,  the  opinion  expressed  by 
many  earlier  historians  and  statesmen  that  the  Dred 
Scott  decision  was  the  most  potent  factor  in  bringing  on 
the  Civil  War  has  been  rejected,  and  the  inevitability  of 
that  conflict  has  been  realized,  the  really  serious  eflfect  of 
this  fatal  decision  by  the  Court  was  that  which  was 
foretold  by  a  writer  in  the  North  American  Review^  as 
early  as  October,  1857 :  "The  country  will  feel  the  con- 
sequences of  the  decision  more  deeply  and  more  per- 
manently, in  the  loss  of  confidence  in  the  sound  judicial 
integrity  and  strictly  legal  character  of  their  tribunals, 
than  in  anything  beside ;  and  this,  perhaps,  may  well 
be  accounted  the  greatest  political  calamity  which  this 
country,  under  our  forms  of  government,  could  sus- 
tain.''^ 

And  this  view  of  the  case,  which  will  be  the  probable 
final  judgment  of  history,  has  been  recently  well  ex- 
pressed by  a  thoughtful  jurist  as  follows:  "The  Dred 
Scott  decision  cannot  be,  with  accuracy,  written  down 
as  a  usurpation,  but  it  can  and  must  be  written  down  as 
a  gross  abuse  of  trust  by  the  body  which  rendered  it. 
The  results  from  that  abuse  of  trust  were,  moreover, 
momentous.  During  neither  the  Civil  War  nor  the 
period  of  Reconstruction  did  the  Supreme  Court  play 
anything  like  its  due  r6le  of  supervision,  with  the  result 

»  The  Dred  Scott  Case,  by  Timothy  Farrar,  North  Atmt.  Rev.  (1857),  LXXXV ; 
see  also  Partiee  and  Slatfery  (1006),  by  Theodore  Clarke  Smith,  208:  "The  only 
results  of  the  Dred  Scott  Case  were  to  damage  the  prestige  of  the  Court  in  the  North, 
and  to  stimulate  a  sectional  hostility  which  threatened  to  recoil  upon  the  Judges 
themselves." 


THE  DRED  SCOTT  CASE  89 

that  during  the  one  period  the  military  powers  of  the 
President  underwent  undue  expansion,  and  during  the 
other  the  legislative  powers  of  Congress.  The  Court 
itself  was  conscious  of  its  weakness,  yet  notwithstand- 
ing its  prudent  disposition  to  remain  in  the  background, 
at  no  time  since  Jefferson's  first  Administration  has  its 
independence  been  in  greater  jeopardy  than  in  the 
decade  between  1860  and  1870.  So  slow  and  laborious 
was  its  task  of  recuperating  its  shattered  reputation.'*  ^ 

It  must  be  again  emphasized,  however,  that  the  loss 
of  confidence  in  the  Court  was  due  not  merely  to  the 
Court's  decision  but  to  the  false  and  malignant  criti- 
cisms and  portrayals  of  the  Court  which  were  spread 
widely  through  the  North  by  influential  newspapers, 
and  of  which  no  better  illustration  can  be  given  than  to 
quote  in  full  the  clever,  but  venomous,  description 
of  the  members  of  the  Court  sent  out  by  the  Tribune's 
correspondent,  ten  days  after  the  decision.* 

"Mr.  Wayne  is  an  intelligent,  prompt,  good  looking 
Georgian.  He  is  radical  on  the  slavery  question,  and 
would  dispute  the  right  of  any  Northern  man  to  have  an 
opinion  on  slavery  or  its  relations,  anyway.  He  en- 
tered with  alacrity  and  vim  into  Judge  Taney's  views, 
and  would  stand  by  them,  and  either  argue  for  them  or 
fight  for  them,  according  to  the  necessities  of  the  case. 
He  is  one  of  the  Chivalry,  and  before  he  got  old,  the 
ladies  used  to  be  enamored  of  his  flowing  locks  and 
general  beauty  of  appearance,  to  which  he  was  him- 
self not  wholly  insensible.  He  was  very  much  ex- 
ercised in  mind,  during  the  delivery  of  Judge  Curtis' 

^  Ths  Dred  ScoU  Decision  in  the  Light  of  Cantemporary  Legal  Doctrine,  by  Edward 
S.  Cdrwin,  Amer.  Hist,  Rcd,  (1911),  XVII;  The  Doctrine  cf  Judicial  Review  (1914), 
by  Edward  S.  Corwin ;  Note  on  the  Dred  Scott  Case,  by  Hampton  L.  Carson,  Amer. 
Law  Rev.  (1902),  XXXVI ;  The  Dred  ScoU  Case  in  the  Light  of  Later  Events,  by 
Morris  M.  Cohn,  ibid.  (1912),  XLVI ;  Did  the  Decision  in  the  Dred  SeoU  Case  Lead  to 
the  Ciml  War?  by  Henry  A.  Forster,  ibid.  (1918),  LII. 

<  New  York  Tribune,  March  17,  1857. 


40  THE  SUPREME  COURT 

opinion,  and  could  not  restrain  the  exhibition  of  his 
feelings.  .  •  .  He  commented  audibly,  both  to  the 
Chief  Justice,  and  to  Judge  Daniel  who  sat  on  either 
side  of  him.  In  fact,  both  he  and  the  veteran  Daniel 
seemed  as  uneasy,  while  Judge  Curtis  was  reading,  as 
though  they  were  listening  to  an  Abolition  harangue. 

"Judge  Daniel  of  Virginia  is  old,  and  long,  and  lean, 
and  sharp  in  the  visage,  and  simply  wears  the  aspect  of 
a  tremulous  and  fidgety  old  gentleman  in  glasses.  His 
politics  are  those  of  a  Virginia  slaveholder  and  ab- 
stractionist, who  swears  by  the  resolutions  of  *98.  Of 
course,  he  goes  to  the  hilt  on  any  point  where  the  de- 
mands of  the  Oligarchy  are  concerned. 

"Judge  Catron  of  Tennessee  is  a  robust,  unintellec- 
tual  man,  advanced  in  years,  whose  judgments  would  be 
inevitably  swayed  by  his  political  associations,  but 
whose  erroneous  opinions  would,  as  a  general  rule,  more 
often  result  from  obtuseness  than  from  original  sin.  .  .  . 
He  listened  with  a  good  deal  of  respectful  surprise  to 
Judge  Curtis*  exposition  of  the  fallacy  of  his  deduc- 
tions. .  •  • 

"Of  Judge  Campbell  of  Alabama,  there  is  nothing  to 
be  said,  except  that  on  the  subject  in  question  he  is 
more  fanatical  than  the  fanatics,  more  Southern  than 
the  extreme  South  from  which  he  comes.  A  judicial 
.  .  .  decision  from  him,  where  slavery  is  concerned, 
is  of  no  more  value  than  the  cawing  of  a  raven.  He  is  a 
middle-aged,  middle-sized  man,  bald,  and  possessed  of 
middling  talents. 

"Grier  of  Pennsylvania  followed  his  instincts  and  not 
his  convictions,  if  a  man  may  be  said  to  have  convic- 
tions who  has  not  moral  stamina  enough  to  distinctly 
avow  his  real  opinions.  Grier  is  a  man  somewhat  mis- 
understood. He  is  not  what  we  fancy  he  is  generally 
considered  to  be,  a  perverse,  iron-sided,  hard-shelled, 


THE   DEED  SCOTT  CASE  41 

soulless,  pro-slavery,  old  curmudgeon.  If  anyone  en- 
tertains this  uncharitable  opinion  of  Grier,  we  must  beg 
to  undeceive  him.  He  is  no  such  man.  In  the  first 
place,  the  Judge  is  a  blonde,  of  rotund  figure.  This 
alone  intimates  a  denial  of  the  character  suggested,  and 
the  Judge's  real  characteristics  closely  conform  to  his 
external,  physiological  delineations.  He  is  of  a  soft  and 
rosy  nature.  He  is  facile  and  easy  of  suggestion.  He 
succumbs  under  touch,  and  returns  into  shape  on  its  re- 
moval. He  is  ardent  and  impressible.  He  is  fickle  and 
uncertain.  .  .  .  He  is  impulsive  and  precipitate.  Let 
Grier  associate  with  none  but  honest  men,  and  be  placed 
in  no  difficult  or  constraining  circumstances,  and  he 
would  not  disgrace  himself  or  his  position.  We  concede 
to  Mr.  Grier  another  merit.  If  he  belonged  to  a  Black 
Republican  Court,  he  would  side  with  the  majority. 

"...  Of  Nelson,  it  is  needless  to  say  more  than  that 
he  is  a  New  York  Democrat  of  the  perishing  school. 
He  hesitated  to  go  with  the  Southern  Judges  in  their 
revolutionary  opinions,  yet  he  had  not  sufficient  virtue 
to  boldly  stand  up  against  their  heresies. 

"...  Of  Taney's  opinion,  it  will  be  found  to  ex- 
hibit all  the  characteristics  that  have  marked  his  career. 
It  is  subtle,  ingenious,  sophistical  and  false.  It  is  the 
plea  of  a  tricky  lawyer  and  not  the  decree  of  an  upright 
Judge.  It  is  a  singular,  but  not  wonderful  fact  in 
nature,  that  the  body  to  some  extent  intimates  the 
character  of  the  soul  that  inhabits  it.  This  is  the  case 
with  Judge  Taney.  He  walks  with  inverted  and  hesitat- 
ing steps.  His  forehead  is  contracted,  his  eye  sunken 
and  his  visage  has  a  sinister  expression.'' 

Such  ridicule  and  abuse,  published  and  republished 
and  quoted  by  other  newspapers  throughout  the  North- 
em  States,  could  not  fail  to  weaken  the  Court's  status 
with  the  people. 


CHAPTER  TWENTY-SEVEN 

THE  BOOTH  CASE,  AND  CONGRESSIONAL  ATTACKS 

1858-1860 

Shortly  after  the  delivery  of  the  Dred  Scott  deci- 
sion and  the  adjournment  of  the  Court  on  March  7, 
1857,  Judge  Curtis  determined  to  resign.  While  reach- 
ing this  conclusion  primarily  because  of  the  inade- 
quacy of  the  salary,  he  was  also  influenced  by  his  be- 
lief, regretfully  held,  that  he  could  no  longer  expect 
to  see  the  Cotu*t  act  on  constitutional  questions,  with 
freedom   from   political   considerations.^    When    this 

1  CuHis,  I,  U5,  letter  from  G.  T.  Curtis,  July  3, 1857.  Contiderable  friction  had 
arisen  between  the  members  of  the  Court,  over  the  fact  that  Judges  Curtis  and 
McLean  had  filed  with  the  Clerk,  on  March  9,  their  full  opinions,  which  had  been 
printed  and  widely  circulated  throughout  the  North,  before  Taney  had  filed  the 
opioion  of  the  Coiu't,  and  before  the  other  Judges  had  filed  their  separate  opin- 
ions. An  acrimonious  correspondence  on  the  subject  ensued  between  Taney  and 
Curtis;  see  Curtu,  I,  211-230;  on  April  2,  1857,  the  National  Intelligencer  re- 
printed a  letter  from  the  Washington  correspondent  of  the  New  York  Journal  of 
Commerce,  dated  March  28 :  "I  called  at  the  Clerk's  office  of  the  Supreme  Court 
just  now  and  ascertained  that  there  is  no  mode  of  procuring  official  copies  or  any 
copies  of  the  opinions  of  the  Court  in  the  Dred  Scott  case,  until  the  Reporter  of  the 
Coiu't,  Mr.  Howard,  shall  have  them  printed  in  his  series  of  reports.  The  volume 
which  is  to  contain  them  is  nearly  ready,  and  is  only  delayed  until  he  can  obtain 
the  revised  copies  of  the  opinion.  The  opinion  of  the  Court,  as  read  by  the  Chief 
Justice,  is  not  yet  on  file ;  but  he  expected  to  be  ready  to  file  it  today.  There  will 
be  no  delay,  or  very  little,  about  the  others.  The  opinions  of  Justices  McLean  and 
Curtis  were  filed  on  the  9th.  .  .  .  These  have  been  published  at  the  North. 
The  abstracts  published  of  Chief  Justice  Taney*s  and  Justice  Nelson's  opinions 
were  taken  in  shorthand,  and  of  course  are  imperfect."  From  an  interesting, 
confidential  letter  written  by  a  friend,  James  E.  Harvey,  to  Judge  McLean,  April 
3,  it  appears  that  various  Judges  modified  the  form  of  th^  opinions  after  their 
oral  delivery.  Harvey  wrote:  "There  are  strong  surmises  about  the  manipu- 
lations to  which  the  majority  opinions  have  been  subjected.  As  the  Appletons 
wrote  to  me  to  get  them  all  for  publication,  I  took  some  pains  to  inform  myself 
about  their  status  —  if  you  allow  that  word,  when  not  applied  to  slavery.  Last 
week,  they  had  not  been  filed  and  were  inaccessible.  Taney's  had  been  twice 
copied  for  revision,  and  an  application  from  the  Intelligencer  to  publish  was  refused, 
owing  to  non-completion.     That  dause  in  Catron's,  rebuking  ihe  discussion  of  the 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    48 

resignation  was  presented  on  September  1,  1857,  the 
news  was  received  by  the  Bar  of  the  North  with  the 
deepest  regret.^  Ex-President  Fillmore  wrote  to  him 
that  his  appointment  was  one  **to  which  I  and  my 
friends  could  always  point  with  proud  satisfaction", 
and  that  he  regarded  the  resignation  as  **a  calamity" 
which  he  feared  would  "not  only  impair  the  confi- 
dence of  all  good  and  intelligent  men  in  the  stability 
of  our  institutions,  but  that  the  appointment  of  a 
successor  may  be  most  unfortunate.  .  .  .  You  may 
know  who  will  probably  be  selected,  but  I  confess,  I 
fear  the  worst."  All  of  Curtis*  Associates  on  the  Bench 
(with  the  exception  of  Judge  Daniel)  sent  letters  of 
deep  regret,  though  that  of  the  Chief  Justice  was  some- 
what perfunctory.  Judge  McLean  wrote  despond- 
ingly  that  the  loss  was  irreparable,  and  that  while,  in 
1830  when  he  took  his  seat,  the  **  Court  commanded 
the  respect  and  veneration  of  the  country,  it  can  never 
hope  to  regain  so  elevated  a  position  in  the  future", 
and  that  he  had  "lost  the  interest  and  pride  I  once 
felt  in  the  tribunal."  Some  old-line  Whigs  felt  that 
Curtis  should  have  sacrificed  his  personal  feeling  and 
remained  on  the  Bench,  rather  than  create  a  vacancy 
at  this  time.  "How  could  so  wise  a  man  as  our  friend 
B.  R.  Curtis  do  so  deplorable  a  thing  as  to  resign  •  .  . 
at  this  untimely  moment?"  wrote  Robert  C.  Winthrop 
of  Massachusetts,  the  former  Speaker  of  the  House 
of  Representatives.     "I  may  over-estimate  the  impor- 

merits  of  the  caae  after  the  denial  of  jurisdiction,  has  been  expurgated.  But  a 
sin^e  copy  was  printed  for  his  own  use.  CampbeU*s  has  been  printed  privately, 
but  not  for  circulation.  He  forbade  the  printer  from  showing  it  to  anybody." 
John  McLean  Papers  MS8.  The  opinions  were  not  officially  published  until  the 
end  of  May,  the  National  Intelligencer  printing  them  first,  on  May  29. 

>  Curtis*  opinion  entirely  revolutionized  the  former  adverse  views  held  regarding 
him  by  the  anti-slavery  men.  An  interesting  example  of  their  attitude  is  seen  in 
a  letter  from  Henry  L.  Higginson,  in  May,  1857 :  "  Judge  Taney's  decision  is  in- 
famous to  the  last  degree.  Ben  Curtis  for  once  has  been  honest.**  Life  and  Letters 
of  Henry  Lee  Higgineon  (1921),  by  Bliss  Perry,  110. 


44  THE  SUPREME  COURT 

tance  of  his  course,  and  I  certainly  esteem  and  respect 
him,  but  I  have  never  known  a  resignation  which  has 
so  much  the  air  of  desertion.  Buchanan  will  have  a 
chance  to  make  the  Court  still  less  acceptable  to  this 
part  of  the  coimtry/'  ^ 

The  intensity  of  bitterness  aroused  against  the  Court 
in  the  North  was  well  illustrated  by  the  savage,  unjust 
and  untrue  attacks  which  were  made  upon  the  man 
whom  Buchanan  now  chose  to  fill  the  vacancy  caused 
by  the  resignation  of  Judge  Curtis.  The  President 
had  at  first  been  inclined  to  appoint  Isaac  Toucey  of 
Connecticut,  formerly  United  States  Attorney-Gen- 
eral; he  had  also  even  considered  going  outside  the 
Circuit  and  appointing  a  Southerner,  William  L.  Yan- 
cey of  Alabama.  Rufus  Choate  of  Massachusetts 
had  strong  supporters ;  John  J.  Gilchrist  of  New  Hamp- 
shire, who  had  formerly  been  Chief  Justice  of  that 
State  and  was  now  Chief  Justice  of  the  new  United 
States  Court  of  Claims,  was  recommended  by  Choate 
himself,  and  by  Reverdy  Johnson  and  Charles  0*Conor.^ 
Buchanan  finally  determined  on  Nathan  Clifford  of 
Maine,  and  submitted  his  name  to  the  Senate  on  De- 
cember 9,  1857.  Clifford  was  fifty-four  years  of  age, 
and  had  served  as  Attorney-General,  both  of  his  State, 
and  of  the  United  States  (imder  Polk).  As  his  later 
career  showed,  he  was  amply  qualified  as  a  lawyer  of 
great  learning  and  powers  of  research.  The  moment, 
however,  the  nomination  reached  the  Senate,  it  was 
subjected  to  the  most  venomous  criticism  by  the  radi- 
cal anti-slavery  men,  particularly  by  John  P.  Hale, 

>  Memoir  of  Robert  C.  Winthrop  (1897),  by  Robert  C.  Winthrop,  Jr. 

*  See  letter  of  Howell  Cobb  to  Alexander  H.  Stephens,  Sept.  22, 1857,  Amer.  Hist. 
Ab9,  Rep.  (1911),  I,  422;  letters  of  J.  J.  Gilchrist  to  Pierce,  Sept.  16,  1857,  Gush- 
ing to  Pierce,  Oct.  2,  1857,  Franklin  Pierce  Papers  MSS;  Richard  K.  Grails  wrote 
to  R.  M.  T.  Hunter,  Oct.  24,  1857,  that  "I  suppose  the  rumored  transfer  of  Yan- 
cey to  the  Supreme  Gourt  Bench  is  to  deprive  you  of  all  Gabinet  connections.** 
Correspondence  qf  R.  M.  T,  Hunter,  Amer.  Hist.  Ass.  Rep.  (1916),  II. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    45 

Senator  from  New  Hampshire.  The  New  York  Trtb- 
une^s  Washington  correspondent  wrote  that:  "The 
President  has  determined  to  break  down  all  exclusive 
privileges  and  monopolies,  as  anti-Democratic;  and 
therefore,  as  New  England  has  had  Story  and  Curtis, 
upon  which  they  have  grown  rather  presumptuous, 
he  has 'determined  to  bring  them  down  to  the  level  of 
the  other  Circuits  and  appoint  CliflFord.  However, 
Cliflford  will  be  confirmed  under  party  drill,  although 
it  is  well  known  that  the  entire  Bar  of  New  England 
has  protested  against  it  as  an  outrage.  Thus  the  pro- 
cess of  deterioration  goes  on,  and  the  Supreme  Coiu-t 
is  gradually  becoming  a  mere  party  machine,  to  do 
the  bidding  of  the  dominant  faction  and  to  supply 
places  to  reward  party  hacks.*'  *  This  statement  that 
the  entire  Bar  of  New  England  had  protested  had  no 
foimdation ;  but  it  is  true  that  there  was  considerable 
opposition,  based  largely  on  personal  grounds.  On 
January  12,  1858,  nevertheless,  the  Senate  confirmed 
the  appointment  by  the  close  vote  of  twenty-six  to 
twenty-three.*  "Mr.  CliflFord  owes  this  appointment 
exclusively  to  his  party  associations,  unsupported  by 
the  wishes  or  recommendation  of  the  Bar  of  his  Cir- 
cuit. His  sympathies  coincide  entirely  with  those 
which  the  Court  have  manifested,  and  bring  the 
strength  of  his  vote  to  the  sectional  action  of  the  Court, 
without  any  independence  or  great  legal  ability,"  said 
the  New  York  Evening  Post.  "There  is  perhaps  some 
satisfaction  in  the  belief,  which  this  appointment 
strengthens,  that  the  weakness  and  evident  character 

1  See  New  York  Tribune,  Dec.  18,  99,  1857,  Jan.  IS,  14,  16.  1858. 

*  The  New  York  Evening  Post,  Jan.  14, 15, 1858,  aaid  that  the  defeat  of  Clifford's 
nomination  had  been  thought  certain,  but  that  by  reason  of  the  absence  of  two 
of  his  opponents.  Senators  Charles  Sumner  and  Simon  Cameron,  and  the  change 
of  mind  of  Senator  Allen  of  Rhode  Island,  he  was  confirmed.  "The  result  is  suf- 
ficiently to  be  regretted,  but  the  negligence  through  which  it  was  achieyed  is  de- 
plorable, and  occasions  great  mortification^  not  unmixed  with  vexation." 


46  THE  SUPREME  COURT 

of  the  Court,  together  with  the  inequality  of  its  com- 
position, will  produce  an  entire  remodelling  of  it;" 
and  the  New  York  Tribune  also  continued  its  attack : 
"On  the  principle  which  seems  to  have  governed  the 
selection  of  Mr.  Cliflford,  that  the  proper  business  of 
the  Northern  minority  on  the  Bench  is  merely  to  fall 
in  with  and  say  yes  to  any  extravagances  which  the 
Southern  majority  may  choose  to  promulgate,  Mr. 
CliflFord  is  admirably  fitted  for  the  place  in  which  he 
has  been  put.  We  may  be  quite  sure  that  he  will 
never  be  driven,  by  his  knowledge  of  the  law  and  his- 
tory or  his  logical  perception  of  things,  into  playing 
the  marplot,  as  Judge  Curtis  did  in  the  Dred  Scott  Casey 
tumbling  down  the  decision  of  the  Court  about  its 
ears,  and  exposing  that  grave  tribimal  to  popular  deri- 
sion and  even  contempt.*'  To  these  partisan  diatribes, 
Judge  Cliflford's  distinguished  judicial  service  of  twenty- 
three  years,  until  his  death  in  1881,  afforded  a  complete 
refutal. 

When  the  Court  met  for  its  December  Term  at  the 
end  of  the  year  1857,  the  newly  elected  Congress  was 
being  confronted  with  the  slavery  question  in  its  most 
inflamed  condition.  The  wrongs  of  **  bleeding  Kan- 
sas", the  question  of  the  admission  of  that  Territory 
as  a  State,  the  question  of  the  legality  of  its  two  Con- 
stitutions—  one  framed  by  slavery  men  at  Lecomp- 
ton,  the  other  by  anti-slavery  men  at  Topeka  —  were 
all  the  subject  of  long  and  violent  debates,  which  lasted 
through  the  sessions  of  1858,  1859  and  1860.  In  addi- 
tion, in  1859,  the  John  Brown-Harper's  Ferry  episode 
elicited  passionate  speeches  on  this  imescapable 
question.  In  all  these  debates,  covering  hundreds  of 
pages  of  the  Congressional  Globes  the  opinions  of  the 
Court  in  the  Dred  Scott  Case^  and  the  action  of  Chief 
Justice  Taney  and  the  other  Judges  formed  a  con- 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    47 

slant  staple  for  assault  and  defense.  Interminable 
discussions  arose,  also,  as  to  the  legal  points  involved 
in  the  case,  and  as  to  the  applicability  of  the  decision  to 
the  point  at  issue  in  Kansas  —  the  right  of  a  Terri- 
tory to  legislate  on  the  subject  of  slavery.  Few  of 
these  details  are  of  interest  now,  but  in  the  three  years 
prior  to  the  Civil  War  they  formed  the  chief,  almost 
the  only,  subject  of  concern  in  Congress ;  and  the  debates, 
centering  as  they  did  around  the  Court,  had  a  most 
demoralizing  effect  upon  the  attitude  of  the  general 
public  towards  the  Judiciary.  Illustrative  of  the  general 
Republican  attitude  in  the  Senate  were  the  speeches  of 
Hale  of  New  Hampshire,  Trumbull  of  Illinois,  Fessenden 
of  Maine,  Doolittle  of  Wisconsin,  CoUamer  of  Ver- 
mont, Seward  of  New  York,  Hamlin  of  Maine,  and 
Wade  of  Ohio.^  A  few  of  their  sentiments  were 
as  follows.  Hale  said  that  he  had  practically  lost 
all  respect  for  the  Court  since  they  had  "come 
down  from  their  place  and  thrown  themselves  into 
the  political  arena",  and  "when  the  excitement  has 
passed  away,  the  record  of  this  decision  will  stand,  not 
a  monument  to  the  wisdom  or  to  the  integrity  of  the 
Court,  but  it  will  stand  as  one  of  those  imfortunate 
decisions  which  Courts  have  frequently  made,  when 
they  have  undertaken  to  mold  eternal  principles  of 
justice  and  law  to  suit  the  purposes  of  power.  ...  I 
denounce  that  opinion  on  every  occasion.  I  invoke 
the  public  indignation  upon  it.*'  Trumbull  said  that, 
by  trying  by  dicta  to  settle  points  not  before  it,  the 

^  S5ih  Cong,,  lit  Sets,  and  App,,  speeches  in  1858,  of  Hale,  Jan.  18,  20,  Trum- 
bull, Feb.  2,  March  17,  Fessenden,  Feb.  8,  Collamer,  March  2,  Wade,  March  IS, 
Hamlin,  March  9,  Seward,  March  3;  in  1859,  of  Hale,  Feb.  23,  Pugh,  Jan.  3,  Feb. 
23,  Chandler,  Feb.  17;  in  1860,  of  Doolittle,  Jan.  3;  see  also  in  the  House  in  1858, 
speeches  of  Washburn,  Jan.  7,  Giddings,  Jan.  18,  Foster,  March  10,  Abbott^  March 
28,  Olin,  March  29,  Tappan,  March  31,  Walton,  March  31,  Bliss,  May  6;  in  1859, 
speeches  of  Davies,  Feb.  11,  Bingham,  Feb.  11,  Granger,  Feb.  17,  Brown,  Feb.  17; 
in  1860,  speeches  of  Foster,  Jan.  12,  Gooch,  May  3,  Washburn,  May  19. 


48  THE  SUPREME  COURT 

Court  "was  a  set  of  usurpers/'  Fessenden  cited  with 
approval  a  recent  case  in  the  Supreme  Court  of  Geor- 
gia/ in  which  that  Court  had  stated  that  it  was  not 
bound  by  decisions  of  the  United  States  Supreme  Court, 
especially  partisan  opinions  —  a  doctrine  which,  be 
it  noted,  the  Northern  Whigs  of  former  days  had 
vigorously  denounced.  The  most  violent  assaults, 
however,  were  made  by  Seward,  Hamlin  and  Wade. 
Seward,  in  an  elaborate  and  picturesque  but  venomous 
speech,  made  the  direct  charge  that  the  Dred  Scott 
Case  was  a  dummy  suit,  manufactiu*ed  by  Buchanan 
and  the  slavery  interests  for  their  own  purposes,  that 
the  argument  was  a  "'mock  debate",  that  Buchanan 
and  the  Chief  Justice  had  acted  in  collusion  to  cheat 
the  coimtry,  and  that  the  decision  was  the  result  of  a 
political  bargain  between  the  Court  and  the  President, 
who  "alike  forgot  that  judicial  usurpation  is  more 
odious  and  intolerable,  than  any  other  among  the 
manifold  practices  of  tyranny." 

It  is  evident  that  not  one  of  these  slanderous 
assertions  was  true;  they  were  made,  as  Senator 
Judah  P.  Benjamin  said  in  his  eloquent  reply,  "without 
proof  of  a  solitary  fact,  without  the  assertion  even  of 
a  fact,  on  which  to  base  the  foul  charge.  "*  And  the 
actual  history  of  the  case,  its  date  of  origin,  the  par- 


^  Paddford  ▼.  Savannah  (1854,)  14  Gft.  488. 

*  Tyler,  in  his  M&moir  of  Roger  Brooke  Taney  (1872),  880-390,  diaciused  at  length 
Seward's  attack  and  said :  "This  bungling  sketch  of  an  historical  scene,  by  unskil- 
ful literary  ambition  is  an  unmitigated  calumny  from  beginning  to  end" ;  and  he 
published  letters  to  him  from  Judge  Campbell,  Judge  Nelson  and  Reverdy  John- 
son to  disprove  Seward's  statements. 

For  Seward's  charge,  see  S6th  Cong.,  let  Seee.,  043.  Prof.  John  W.  Burgess  in 
The  Middle  Period  (1807),  457,  said :  "  It  is  almost  certain  that  the  charge  was  an 
unfounded  suspicion.  The  prevalenoe  of  the  suspicion  was,  however,  an  ominous 
sign  of  the  danger  impending  over  the  land.  .  .  .  Both  Mr.  Buchanan  and  Mr. 
Taney  were  men  of  the  highest  personal  and  official  integrity  and  possessed  the 
most  delicate  sense  of  the  requirements  and  proprieties  of  the  great  stations  which 
they  occupied." 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    49 

ties  concerned  in  appealing  it,  and  the  manner  in  which 
the  Judges  arrived  at  the  final  disposition  conclusively 
disprove  Seward's  statements.  Nevertheless,  simi- 
lar charges  were  made  by  Hamlin,  in  a  slashing  speech 
in  which  he  said  that  the  slavery  interests  had  secured 
control  of  the  Legislative,  the  Executive  and  the  Judi- 
ciary, and  that  the  foreshadowing  of  the  decision  in 
the  Dred  Scott  Case  by  Buchanan  in  his  Inaugural  Ad- 
dress was  evidence  of  "political  collusion  and  com- 
plicity" with  the  Court,  whose  "object  was  to  rob  the 
people  and  the  States  of  the  rights  that  belong  to 
them/'  Wade  also  assailed  the  "late  nefarious  deci- 
sion." **  I  wish  I  could  entertain  a  good  opinion  of  the 
Judges  of  that  Court,"  he  said.  "I  wish  I  could  be- 
lieve they  were  patriotic,  unswerved  by  political  con- 
siderations, or  uninfluenced  by  anything  but  their 
duty.  ...  I  fear  that  the  Court,  swayed  by  political 
reasons,  forgot  the  rights  of  Dred  Scott,  and  plunged 
into  this  political  whirlpool  in  order  to  control  its  cur- 
rents." Like  so  many  of  their  Republican  associates 
at  this  time,  both  Wade  and  Hamlin  entirely  discarded 
the  doctrines  of  John  Marshall,  and  embraced  with 
ardor  the  views  of  Jeflferson  relating  to  the  functions 
of  the  Court.  "I  deny  the  doctrine  that  Judges  have 
any  right  to  decide  the  law  of  the  land  for  every  de- 
partment of  this  Government,"  protested  Wade. 
"You  would  have  the  most  concentrated,  irrespon- 
sible despotism  on  God's  earth,  if  you  give  such  an  in- 
terpretation to  the  decisions  of  that  or  any  other  Court." 
"This  is  a  purely  political  question,  in  regard  to  which 
Thomas  Jefferson  so  early  and  so  ably  warned  us 
against  judicial  interference,"  said  Hamlin.  "They 
had  no  more  authority  to  decide  a  political  question 
for  us  than  we  had  to  decide  a  judicial  question  for 
them." 


60  THE  SUPREME  COURT 

Nor  were  the  Republican  speeches  entirely  con- 
fined to  invective.  Many  Senators  openly  proclaimed 
the  intention  of  their  party  to  strive  for  a  complete 
reformation  or  reorganization  of  the  Court.  Though 
the  early  accomplishment  of  this  event  did  not  seem, 
in  1858,  very  probable,  since  it  would  require  the  con- 
trol of  Congress  and  the  Presidency  by  the  Republi- 
can Party,  nevertheless,  Seward  proclaimed  with  great 
earnestness:  "Whether  the  Court  recedes  or  not,  we 
shall  reorganize  the  Court,  and  thus  reform  its  poUti- 
cal  sentiments  ana  practices,  and  bring  them  into 
harmony  with  the  Constitution  and  the  laws  of  nature. 
In  doing  so,  we  shall  not  only  reassume  our  own  just 
authority,  but  we  shall  restore  that  high  tribunal  it- 
self to  the  position  it  ought  to  maintain,  since  so  many 
invaluable  rights  of  citizens,  and  even  of  States  them- 
selves, depend  upon  its  impartiality  and  its  wisdom." 
And  Zachariah  Chandler  of  Michigan,  stating  that  the 
present  organization  of  the  Court  was  "monstrous", 
since  three  fourths  of  the  business  was  in  the  North 
with  four  Judges,  and  one  quarter  in  the  South  with 
five  Judges,  said  that  the  Republican  Party  meant 
"to  annul  the  Dred  Scott  decision,  the  stump  speech 
of  Taney,  the  mere  fanfaronade  which  is  not  a  deci- 
sion at  all",  by  an  entire  reorganization  of  the  Court. 
To  these  Republican  extravagances  of  utterance,  James 
F.  Sinmions  of  Rhode  Island  made  a  sane  reply,  say- 
ing :  "I  do  not  think  there  needs  to  be  any  reconstruc- 
tion of  the  Court.  .  .  •  These  decisions  are  not  like  the 
laws  of  the  Medes  and  Persians.  The  decision  of  this 
Court  in  the  Dartmouth  College  Case  was  thought  to 
settle  a  principle,  which  induced  our  banks  to  refuse 
to  pay  the  tax  imposed  upon  them  by  the  State,  and 
the  prevailing  opinion  at  the  Bar  in  Rhode  Island  was 
that  the  banks  would  be  sustained  by  the  Court.     The 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    51 

State  brought  the  question  here,  and  the  Court  decided 
in  favor  of  the  power  of  the  State  to  tax  corpora- 
tions. .  •  •  No  such  decision  of  this  Court  will  stand, 
unless  it  has  sound  reason  and  sound  law  to  rest  upon. 
This  question  was  decided  when  the  public  mind  was 
in  a  feverish  state,  and  the  Court  may  have  unwittingly 
been  affected  by  the  excitement.  .  .  .  We  must  wait 
until  it  subsides,  and  trust  that  then  the  errors  it  has 
occasioned  will  be  corrected."  ^ 

On  the  Democratic  side,  lengthy  and  heated  argu- 
ments were  delivered  in  defense  of  the  Court  by  Jef- 
ferson Davis  of  Mississippi,  Stephen  A.  Douglas  of 
Illinois,  James  A.  Stewart  of  Maryland,  Joseph  Lane 
of  Oregon  and  Judah  P.  Benjamin  of  Louisiana :  and 
the  latter  made  a  full,  eloquent  and  powerful  answer 
to  Seward's  charges  of  corrupt  bargaining  between  the 
President  and  the  Court.  George  E.  Pugh  of  Ohio, 
while  not  agreeing  with  the  decision,  stated  that  when- 
ever the  Court  has  decided  the  question  as  to  the  limits 
of  territorial  authority  over  slavery,  "whatever  may 
be  my  opinion  as  an  individual,  both  as  a  Senator  and 
a  citizen,  the  judgment  of  the  Court  must  be  carried 
into  effect.  We  cannot  live  an  hour  under  any  other 
doctrine.  It  is  more  important  to  the  community, 
more  important  to  the  cause  of  good  government,  that 
a  judgment,  once  pronounced  by  the  appropriate  tri- 
bunal, should  go  into  effect,  than  that  it  should  be 
decided  rightly  —  far  more.'*  * 

No  discussion  of  the  Dred  Scott  Case^  either  in  Con- 
gress or  elsewhere,  had  so  potent  an  influence  with  the 
people  as  that  which  took  place  during  the  famous 

^  Speeches  of  Seward,  March  8, 1858;  Chandler,  Feb.  17, 1859;  Simmona,  March 
80,  1858. 

'  See  especially  speeches  in  1858,  of  Davis,  Feb.  8,  Douglas,  Feb.  8,  21,  Stewart, 
March  24,  Benjamin,  Maich  11;  in  1859,  of  Douglas,  Feb.  28,  Pugh,  Dec.  19, 
in  1860,  of  Douglas,  Jan.  12,  Pu^  Jan.  12,  Lane,  Feb.  15 ;  see  also  speeches  in 
the  House  of  Cos,  Dec.  8, 1859,  Noell,  Dec.  12, 1859,  Jan.  20, 1860. 


fi2  THE  SUPREME  COURT 

series  of  joint  debates  between  Abraham  Lincoln  and 
Stephen  A.  Douglas,  in  their  Senatorial  campaign  in 
Illinois  in  the  summer  of  1858.  Two  years  before, 
Lincoln  had  publicly  expressed  himself  as  willing  to 
leave  to  the  Supreme  Court,  the  constitutionality  of 
the  Acts  of  Congress  dealing  with  slavery  in  the  Ter- 
ritories, and  to  submit  to  its  decision.^  In  1858,  how- 
ever, he  stated  that  he  declined  to  abide  by  the  deci- 
sion when  rendered;  and  his  views  had  a  powerful 
eflFect  upon  the  country.  It  is  important,  nevertheless, 
to  note  that  Lincoln's  position  has,  in  later  days,  been 
greatly  misrepresented  by  opponents  of  the  Court, 
who  cite  him  as  authority  for  denying  the  Court's 
right  to  pass  upon  an  Act  of  Congress.  Such  a  doc- 
trine was  never  asserted  by  him,  and  his  attitude  was 
summed  up  at  Springfield,  June  26,  as  follows:  ^'Ju- 
dicial decisions  have  two  uses :  first,  to  absolutely  de- 
termine the  case  decided,  and  secondly,  to  indicate 
to  the  public  how  other  similar  cases  will  be  decided 
when  they  arise.  For  the  latter  use,  they  are  called 
*  precedents'  and  *  authorities.'  We  believe  as  much  as 
Judge  Douglas  (perhaps  more)  in  obedience  to,  and 
respect  for,  the  judicial  department  of  government. 
We  think  its  decisions  on  constitutional  questions,  when 
fully  settled,  should  control  not  only  the  particular 
cases  decided,  but  the  general  policy  of  the  country, 
subject  to  be  disturbed  only  by  Amendments  of  the 
Constitution,  as  provided  in  that  instrument  itself. 
More  than  this  would  be  revolution.    But  we  think 

^  See  Lincoln's  speech  at  Galena,  lU.,  Aug.  1.  1856,  when  he  said :  *'I  grant  you 
that  an  unconstitutioDal  act  is  not  law ;  but  I  do  not  ask  and  will  not  take  your 
construction  of  the  Constitution.  The  Supreme  Court  of  the  United  States  is  the 
tribunal  to  decide  such  a  question,  and  we  will  submit  to  its  decisions ;  and  if  you  do 
also,  there  wiU  be  an  end  of  the  matter.  Will  you  ?  If  not,  who  are  the  disunion- 
ists,  —  you,  or  we  ? "  Work*  qf  Abraham  Lincoln  (Federal  Ed.,  1905).  II ;  see  ibid.. 
Ill,  Lincoln's  speeches  at  Springfield,  111.,  June  17,  1858»  and  at  Chicago,  July  10, 
1858. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    53 

the  Dred  Scott  decision  is  erroneous.  We  know  the 
Court  that  made  it  has  often  overruled  its  own  deci- 
sions, and  we  shall  do  what  we  can  to  have  it  over- 
rule this.  We  offer  no  resistance  to  it."  This  was 
precisely  the  language  which  would  be  appropriately 
used  by  a  lawyer  and  a  statesman  who  held  the  Courts 
and  orderly  legal  procedure  in  due  respect;  but  it  in 
no  way  justified  any  attempt  to  disregard  or  disobey 
the  decision  of  the  Court.  And  again  in  his  Inaugural 
Address  in  1861,  Lincoln  pointed  out  that  while  a  Court 
decision  on  a  constitutional  question  did  not  control 
the  political  policy  which  the  country  would  pursue, 
nevertheless,  it  must  be  held  binding  upon  parties  in 
any  suit  involving  such  questions.  ""I  do  not  forget 
the  position,  assumed  by  some,  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court," 
he  said,  *'nor  do  I  deny  that  such  decisions  must  be 
binding  in  any  case,  upon  the  parties  to  a  suit,  as  to  the 
object  of  that  suit,  while  they  are  also  entitled  to  very 
high  respect  and  consideration  in  all  parallel  cases  by 
all  other  departments  of  the  Government.  And  while 
it  is  obviously  possible  that  such  decision  may  be  er- 
roneous in  any  given  case,  still  the  evil  effect  follow- 
ing it,  being  limited  to  that  particular  case,  with  the 
chance  that  it  may  be  overruled  and  never  become  a 
precedent  for  other  cases,  can  better  be  borne  than 
could  the  evils  of  a  different  practice.  At  the  same 
time,  the  candid  citizen  must  confess  that  if  the  policy 
of  the  Government,  upon  vital  questions  affecting  the 
whole  people,  is  to  be  irrevocably  fixed  by  decisions  of 
the  Supreme  Court,  the  instant  they  are  made  in  or- 
dinary litigation  between  parties  in  personal  actions, 
the  people  will  have  ceased  to  be  their  own  rulers,  hav- 
ing to  that  extent  practically  resigned  their  Govern- 
ment into  the  hands  of  that  eminent  tribunal.    Nor 


54  THE  SUPREME  COURT 

is  there  in  this  view  any  assault  upon  the  Court  or  the 
Judges.  It  is  a  duty  from  which  they  may  not  shrink 
to  decide  cases  properly  brought  before  them,  and  it  is 
no  fault  of  theirs  if  others  seek  to  turn  their  decisions 
to  political  purposes.** 

While  the  Republican  press  and  Republican  leaders 
in  Congress  were  thus  continuing  to  arouse  the  senti- 
ment of  the  country  against  the  Court,  the  Supreme 
Court  of  Wisconsin  had  put  itself  in  a  position  of  open 
rebellion  towards  it.  As  has  been  already  described, 
after  the  conviction  of  Booth  in  the  United  States 
District  Court  the  Wisconsin  Supreme  Court  ordered 
his  release  on  habeas  corpus,  on  the  groimd  that  the 
Fugitive  Slave  Law  under  which  he  had  been  convicted 
was  unconstitutional.*  A  writ  of  error  had  been  is- 
sued by  the  United  States  Supreme  Court  on  motion 
of  Attorney-General  Caleb  Cushing,  returnable  in 
December,  1855 ;  but  though  this  writ  was  duly  served 
on  its  Clerk,  the  State  Supreme  Court  directed  him  to 
make  no  return  and  to  enter  no  order  concerning  the 
same  on  his  journals  or  records.  The  Clerk,  however, 
had  already  given  a  certified  copy  of  the  record  to  the 
United  States  District  Attorney  in  March,  1855,  be- 
fore receiving  any  direction  from  the  State  Court.  Ac- 
cordingly, Attorney-General  Cushing  moved  in  the 
United  States  Supreme  Court  in  May,  1856,  to  be 
allowed  to  file  this  copy.    Before  granting  the  motion 

^  One  reason  for  the  readiness  of  the  State  Courts  to  issue  writs  of  habeas  corpus 
for  prisoners  convicted  in  the  inferior  Federal  Courts  was  the  absence  of  any  right 
of  appeal  to  the  Supreme  Court  of  the  United  States  for  any  person  so  convicted. 
At  that  period,  no  Federal  statute  provided  any  appeal  in  a  criminal  case.  Re- 
peated attempts  to  enact  such  a  law  failed  in  Congress.  In  August*  and  again 
in  December,  1855,  Senator  Pugh,  of  Ohio,  introduced  a  bill  for  writs  of  error  in 
all  such  cases  prosecuted  by  indictment  in  the  Federal  Courts,  but  Congress  took 
no  action.  In  January,  1859,  a  bill  having  been  reported  by  the  Committee  on  the 
Judiciary,  a  motion  by  Senator  Bayard  of  Delaware  to  take  it  up  was  defeated. 
35ih  Cong^  2d  8eu,,  Jan.  18, 1859.  In  February,  1860,  Pugh  again  introduced  the 
bilL    Seth  Cong,,  lit  8e39„Veh,l^lSeO. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    55 

the  Court  decided  to  issue  a  special  order  to  the  State 
Court  Clerk  to  make  return,  but  the  latter  still  re- 
fusing to  comply,  and  there  being  thus  a  complete 
deadlock,  the  Court,  on  March  6,  1857  (the  very  day 
of  its  opinion  in  the  Dred  Scott  Case),  allowed  the  mo- 
tion of  the  Attorney-General  to  file  copy  of  the  record, 
**  to  have  the  same  effect  and  legal  operation,  as  if  filed 
by  the  Clerk  with  the  writ  of  error."  The  case  was 
not  reached  for  final  argument,  until  January  19, 1859. 
Meanwhile,  however,  a  renewed  effort  was  made  in 
the  abolitionist  press  and  in  Congress  to  weaken  the 
authority  of  the  Coiu-t,  by  a  move  to  repeal  the  Twenty- 
Fifth  Section  of  the  Judiciary  Act  and  to  abolish  the 
Court's  jurisdiction  on  writs  of  error  to  State  Courts ; 
and  bills  for  this  purpose  (originating  in  Ohio)  were  in- 
troduced in  both  the  Senate  and  the  House,  in  the 
spring  of  1858.^  While  these  measures  failed  of  en- 
actment by  Congress,  their  introduction  now  by  North- 
ern statesmen  marked  a  radical  reversal  in  attitude 
towards  the  Court ;  for  when  similar  repeals  had  been 
advocated  in  the  past,  in  1825-1826  and  1830-1833, 
their  supporters  were  found  almost  entirely  in  the  ranks 
of  the  Southern  Democrats.  "Twenty  years  ago.  South 
Carolina  denied  the  paramount  authority  of  the  Su- 
preme Court  of  the  United  States  and  flew  to  arms 
to  resist  it,"  said  the  New  York  Times,  "while  Mas- 

^SSth  Cong,,  IH  8es9.;  see  bill  introduced  by  Senator  George  E.  Pugii  of  Ohia 
April  80,  1858,  reported  adversely  by  the  Committee  of  the  Judiciary,  May  24, 
Dec.  16,  1858 ;  Philemon  Bliss  of  Ohio  introduced  a  similar  bill  in  the  House.  The 
only  other  Congressional  attacks  upon  the  constitution  of  the  Court,  which  had 
taken  place,  in  the  twenty-seven  years  since  the  serious  attack  in  1831,  were  as 
follows:  Senator  Benjamin  Tappan  of  Ohio  had  three  times  (1840,  1842,  1844) 
introduced  a  bill  proposing  a  Constitutional  Amendment  to  limit  the  term  of  office 
of  Judges  of  the  Supreme  Court  and  of  inferior  Federal  Courts ;  and  in  1843,  though 
defeated  by  a  vote  of  eleven  to  twenty-four,  sudi  prominent  Senators  as  James  Bu- 
chanan, Thomas  H.  Benton  and  Levi  Woodbury  had  voted  for  it ;  a  similar  bill  had 
been  introduced,  in  1847,  by  Senator  Sidney  Breese  of  Illinois ;  see  S&h  Cong,,  2d 
8$$s„  July  8,  0,  Dec.  15,  1840;  erth  Cong.,  3d  8es9„  Dec.  12,  1842,  Jan.  16,  1843; 
28th  Cong.,  lit  Sets.,  Feb.  20, 1844 ;  29th  Cong.,  2d  5ms.,  Feb.  17, 1847. 


56  THE  SUPREME  COURT 

sachusetts  took  the  lead  in  asserting  the  absolute,  un- 
qualified duty  of  every  citizen  and  every  State  to 
yield  implicit  obedience  to  its  decisions  upon  all  ques- 
tions of  constitutional  law.  Today,  the  position  of 
these  two  States  and  of  the  sections  which  they  repre- 
sent is  likely  to  be  reversed,  .  •  .  and  this  change  of 
position  illustrates  the  fact,  to  which  it  is  due,  that 
interest  and  not  reason  rules  over  and  regulates  the 
action  of  States,  as  well  as  of  individuals."  ^  History 
had  made  plain  that  the  North  and  South  were  equally 
willing  to  resort  to  an  attack  upon  the  jurisdiction  of 
the  Court,  and  that  theories  or  principles  of  State- 
Rights  or  National  Supremacy  were  adopted,  or  dis- 
carded, by  the  one  or  the  other,  according  to  the  par- 
ticular interests  which  were  likely  to  be  involved  in 
the  instant  case.  The  change  was  well  illustrated  by 
a  savage  editorial  in  the  New  York  Tribune  at  this 
time,  in  1858,  which  said  that  it  repudiated  utterly 
**the  abominable  notion  that  a  handful  of  political 
subalterns  of  the  Federal  Executive,  his  creatures  and 
tools,  appointed  on  partisan  grounds  and  for  political 
reasons,  are  to  be  permitted  to  sit  in  judgment  on  the 
political  rights  of  great  States,  where  those  rights  come 
in  conflict  with  the  exercise  of  that  same  Federal  au- 
thority. If  the  Supreme  Court  behaves  well  enough 
to  warrant  a  general  confidence  in  it  as  a  safe  deposi- 
tory of  private  rights,  so  be  it.  But  a  safe  depository 
of  the  political  rights  of  the  States,  it  never  can  be.  .  .  . 
We  rejoice  in  the  hope  that  the  doctrine  of  State 
Rights  is  at  last  to  be  reared  above  the  mists  of  Vir- 
ginia abstractionism  and  planted  upon  clear,  solid 
ground.  The  theories  of  ancient  Federalism  in  re- 
gard to  the  rights  and  powers  of  the  States,  though  the 
offspring  of  wise  heads  and  honest  hearts,  must  give 

1 N9W  York  rtiMi,  Much  9, 1857;  Nno  York  THbtm^  Feb.  18, 1858. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    57 

way  before  the  advancing  footsteps  of  a  radical  and 
clear-sighted  democratic  sentiment."  And  the  bitter- 
ness of  feeling  towards  the  Court  was  expressed  in  the 
speech  of  Philemon  Bliss,  an  ardent  abolitionist  Re- 
publican Congressman  from  Ohio :  ^ 

The  spectacle  of  a  gowned  conclave,  gravely  setting  aside 
statutes  and  Constitutions  of  States;  enforcing  powers 
not  granted  in  the  compact,  and  against  the  express  reserva- 
tions of  the  States;  with  eager  zeal  reversing  the  whole 
current  of  authority  and  law,  to  make  universal  a  local  and 
exceptional  despotism;  prompting  its  ministers  to  may- 
hem and  murder,  sure  of  their  iUegal  shield,  never  darkened 
our  fathers'  vision.  Had  a  tithe  of  what  we  stupidly  suffer 
been  anticipated  by  them,  the  Federation  would  have  been 
an  impossibility;  at  least  the  Court  would  have  been  but 
a  Hamilton's  dream  of  a  life  Executive  and  Senate.  .  .  . 
There  never  was  a  more  serious  mistake.  ...  In  read- 
ing over  the  25th  Section  of  the  Judiciary  Act  of  1789,  I 
have  often  wondered  at  the  tameness  of  the  States,  thus 
at  once  made  vassals.  .  .  .  When  from  yon  mysterious 
vault,  the  enrobed  nine  send  forth  their  tomes,  befogging 
by  their  diffuseness,  even  when  announcing  the  plainest 
principles  .  •  •  when  essaying  some  new  constitutional 
construction,  as  they  call  their  attacks  upon  the  rights  of 
the  States  and  their  citizens,  we  are  taught  to  bow  without  ^ 
question,  as  the  faithful  to  the  decrees  of  the  Grand  Lama./ 

And  Bliss  further  said,  in  advocating,  not  only  the 
repeal  of  the  Twenty-Fifth  Section  of  the  Judiciary 
Act,  but  also  the  repeal  of  Section  seven  of  the  Act  of 
March  2,  1833,  a  bill  which  had  been  passed  at  the  in- 
stance of  President  Jackson  to  aid  in  the  suppression 
of  the  Nullification  movement  in  South  Carolina  and 
which  authorized  Federal  Courts  to  grant  writs  of  ha- 
beas corpus  where  a  prisoner  was  confined  for  acts 

^S6th  Cong,,  2d  Se$9„  App.,  72,  Feb.  7,  1809.  Blias  later  became  a  Federal 
Judge,  himself ;  he  was  appointed  Chief  Justice  of  Dakota  by  President  Lincoln 
in  1861,  and  served  on  the  Supreme  Court  of  Missouri  from  1868  to  1873;  he  be- 
came Dean  of  the  Law  Department  of  the  State  University  of  Missouri  in  1873. 


68  THE  SUPREME  COURT 

done  or  omitted  in  pursuance  of  the  laws  of  the  United 
States :  "It  is  a  clear  usurpation  of  Federal  authority. 
The  States  have  a  right  to  execute  their  criminal  laws. 
.  .  .  The  people  are  becoming  roused  to  the  true 
nature  and  alarming  encroachments  of  the  Federation. 
They  look  upon  the  Judiciary  as  the  right  arm  of  these 
encroachments.  They  will  never  yield  their  liberty ; 
and  if  these  things  continue  without  remedy,  the  Fed- 
eral Courts  must  fall.  I  would  save  them  by  timely 
remedy."  When  there  was  thus  presented  in  Con- 
gress the  curious  spectacle  of  a  Northern  Republican 
advocating  the  repeal  of  a  measure  enacted  for  the 
destruction  of  Nullification  and  the  preservation  of 
the  Union,  it  is  no  wonder  that  conservative  leading 
newspapers  of  the  North  should  have  earnestly  depre- 
cated speeches  of  such  a  nature  and  should  have 
termed  the  attempt  to  impair  the  Federal  Judiciary 
—  "the  great  bulwark  of  our  safety"  —  as  a  "revolu- 
tionary step  towards  subverting  the  great  principles 
of  our  Government."^ 

It  was  in  this  atmosphere  of  distrust  and  antagonism 
throughout  the  North,  that  on  January  19,  1859,  the 
Court  listened  to  the  argument  of  the  Booth  Cases  by 
the  Attorney-General  of  the  United  States,  Jeremiah 
S.  Black,  no  counsel  appearing  for  the  State  of  Wis- 
consin.^ On  March  7,  almost  exactly  two  years  from 
the  date  of  the  Dred  Scott  decision,  the  judgment  of 
the  Court  was  pronounced  by  Chief  Justice  Taney  in 
the  most  powerful '  of  all  his  notable  opinions.  Un- 
deterred by  the  opposition  to  its  jurisdiction,  or  by 
the  effect  which  its  decision  might  have  upon  the  slavery 

^  National  IrUelligeneer,  Dec.  10, 1858,  quoting  the  New  York  Journal  of  Commerce. 

*  AhUman  v.  Booth,  Untied  States  v.  Booth,  21  How.  506.  The  case  of  Ableman 
V.  Booth  on  which  the  Wisconsin  Supreme  Court  had  made  a  return  to  the  writ  of 
error  had  been  docketed  in  the  Supreme  Court  of  the  United  States  in  due  form  in 
1855,  but  had  been  postponed  for  argument  to  await  the  filing  of  the  other  case. 
In  re  Booth,  on  which  the  State  Court  had  refused  to  make  return  to  the  writ  of  error. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    59 

issue,  the  Court  remained  adamant  in  upholding  the 
National  Government  against  all  efforts  at  interfer- 
ence with  its  lawful  functions.  The  rights  asserted 
by  the  State  Court  to  annul  the  proceedings  of  the 
United  States  Commissioner,  said  Taney,  and  to  annul 
the  judgment  of  a  United  States  District  Court,  and 
also  to  determine  that  their  decision  is  final  and  con- 
clusive upon  the  United  States  Courts  so  as  to  authorize 
a  Clerk  to  disregard  and  refuse  obedience  to  a  writ 
of  error  issued  pursuant  to  the  Federal  Judiciary  Act, 
were  "new  in  the  jurisprudence  of  the  United  States 
as  well  as  of  the  States,  and  the  supremacy  of  the  State 
Courts  over  the  Courts  of  the  United  States,  in  cases 
arising  under  the  Constitution  and  laws  of  the  United 
States,  is  now  for  the  first  time  asserted  and  acted  upon  in 
the  Supreme  Court  of  a  State."  The  Chief  Justice  then 
continued  with  a  most  vigorous  exposition  of  the  suprem- 
acy of  the  Federal  jurisdiction  in  cases  contemplated 
by  the  Judiciary  Act  and  by  the  Constitution.  The 
judgment  of  the  State  Court,  he  said,  "would  subvert 
the  very  foundations  of  this  Government.  .  .  .  No 
one  will  suppose  that  a  Government  which  has  now 
lasted  nearly  seventy  years,  enforcing  its  laws  by  its 
own  tribunals,  and  preserving  the  Union  of  the  States, 
could  have  lasted  a  single  year,  or  fulfilled  the  high 
trusts  committed  to  it,  if  offenses  against  its  laws  could 
not  have  been  punished  without  the  consent  of  the 
State  in  which  the  culprit  was  found."  Unless  the 
National  Government  was  supreme  in  its  own  sphere, 
it  was  evident  that  it  would  be  "inadequate  to  the 
main  objects  for  which  the  Government  was  estab- 
lished ;  and  that  local  interests,  local  passions  or  preju- 
dices, incited  and  fostered  by  individuals  for  sinister 
purposes,  would  lead  to  acts  of  aggression  and  injus- 
tice by  one  State  upon  the  rights  of  another,  which 


60  THE  SUPREME  COURT 

would  ultimately  terminate  in  violence  and  force,  un- 
less there  was  a  common  arbiter  between  them,  armed 
with  power  enough  to  protect  and  guard  the  rights  of 
all,  by  appropriate  laws,  to  be  carried  into  execution 
peacefully  by  its  judicial  tribunals/'  Supremacy  must 
be  associated  with  "permanent  judicial  authority**; 
and  serious  controversies  might  arise  between  the  au- 
thorities of  the  United  States  and  of  the  States  "which 
must  be  settled  by  force  of  arms,  unless  some  tribunal 
was  created  to  decide  between  them,  finally  and  with- 
out appeal.  The  Constitution  accordingly  provided, 
as  far  as  human  foresight  could  provide,  against  this 
;  danger,'*  by  conferring  upon  the  Federal  Courts  the 
I  supreme  power  and  jurisdiction.  "So  long,  therefore, 
!  as  this  Constitution  shall  endure,**  said  Taney,  "this 
j  tribunal  must  exist  with  it,  deciding  in  the  peaceful 
forms  of  judicial  proceedings  the  angry  and  irritating 
controversies  between  sovereignties,  which  in  other 
countries  have  been  determined  by  the  arbitrament 
of  force.**  And  he  added:  "Nor  can  it  be  inconsist- 
ent with  the  dignity  of  a  sovereign  State,  to  observe 
faithfully,  and  in  the  spirit  of  sincerity  and  truth,  the 
compact  into  which  it  voluntarily  entered  when  it 
became  a  State  of  this  Union.  On  the  contrary,  the 
highest  honor  of  sovereignty  is  untarnished  faith.** 
With  these  ringing  words  in  defense  of  the  National 
supremacy,  the  Chief  Justice  concluded  the  opinion 
of  the  Court  and  announced  the  reversal  of  the  judg- 
ments of  the  State  Courts  —  an  opinion  which  Mar- 
shall himself  never  excelled  in  loftiness  of  tone. 

"He  has  lived  long  and  done  much  for  honor  and 
fame.  But  here  is  the  summit.  He  will  never  sur- 
pass the  wisdom  and  value  of  his  recent  opinion,'* 
was  the  comment  of  a  Washington  newspaper.^     "It 

I  The  States,  March  11,  1859. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    61 

must  put  an  end,  for  the  future,  to  all  contests  between 
the  United  States  and  States  as  to  the  constitution- 
ality of  the  Fugitive  Slave  Law;  and  all  attempts 
hereafter  by  State  Courts  to  interfere  with  officers  of 
the  United  States  in  carrying  it  out  will  be  regarded  as 
revolutionary,  and  treated  as  such,"  said  a  Democratic 
paper  in  New  York.  "  We  trust  that  it  will  be  read 
with  careful,  and  in  the  case  of  men  willing  to  violate 
the  law,  with  prayerful  attention,  for  the  sound  law  and 
truthful  doctrines  it  teaches,"  said  an  Ohio  Democratic 
paper,  which  also  stated  that  the  Court  had  well 
termed  Wisconsin's  action  as  "totally  illegal  and  vir- 
tually revolutionary/'  ^  A  leading  Republican  paper  in 
Philadelphia  said  that :  "The  conduct  of  the  Wisconsin 
Court  was  such  as  to  preclude  any  other  decree.  They 
refused  to  allow  the  record  to  be  sent  up,  thus  setting 
at  defiance  the  established  usage,  and  exhibiting  a  pur- 
pose to  disregard  the  authority  of  the  tribunal  of  last 
resort.  This  is  one  of  the  legitimate  consequences  of 
the  extreme  theory  of  popular  sovereignty  which  will 
go  on  augmenting  its  demands,  until  judicial  decrees, 
like  party  platforms,  must  be  subjected  to  the  revision 
of  caucuses,  conventions  and  mobs.  Then  the  reaction 
will  begin  and  we  shall  run  to  the  other  extreme." 
On  the  other  hand,  the  more  extreme  Republican 
press  denounced  the  decision  as  destined  to  be  quite 
as  notorious  as  the  Dred  Scott  Case,  and  as  "forming  a 
part  of  the  same  system  of  usurpation,  tending  to  the 
concentration  of  all  power  in  the  Federal  Judiciary" ;  * 
and  the  New  York  Evening  Post,  after  commending  and 
indorsing  the  alleged  views  of  Thomas  Jefferson  and 

^  See  New  York  Herald,  Msich  8,  1859;  National  InteUigencer,  March  20,  1809; 
Cleveland  National  Democrat,  May  %,  Maich  17.  April  25, 1859 ;  Philadelphia  North 
American,  March  10,  1^59. 

*Neto  York  Tribune,  March  6,  April  1,  1859;  New  York  Evening  Poet,  March 
«1.  1859. 


62  THE  SUPREME  COURT 

of  John  C.  Calhoun,  as  to  the  danger  of  encroachment 
by  the  Federal  Courts  on  the  States,  said  that :  "  Noth- 
ing more  fatal  to  the  reserved  rights  of  the  States, 
nothing  more  dangerous  to  the  securities  of  the  indi- 
vidual, can  well  be  conceived,  than  the  authority 
claimed  for  it  in  the  recent  decision  of  Judge  Taney. 
.  •  •  The  process  of  the  Supreme  Court  is  sui>reme 
and  final ;  and  no  State  law  or  decision  of  a  State  Court 
which  interferes  with  the  execution  of  the  Fugitive 
Slave  Act  has  any  constitutional  force.  Now,  so  far 
as  this  decision  is  intended  to  give  strength  to  the 
Fugitive  Slave  Act,  it  is  not  of  much  importance ;  for 
that  Act  is  very  much  of  a  dead  letter  upon  the  statute 
book,  the  moral  sense  of  the  community  refusing  to 
execute  it  in  the  greater  number  of  cases ;  but,  so  far 
as  it  asserts  a  principle,  it  is  an  alarming  assumption 
of  power.  It  places  the  liberty  of  the  citizen,  it  seems 
to  us,  wholly  at  the  disposal  of  the  Federal  tribunals, 
and  supersedes  every  protection  which  he  might  claim 
from  the  Courts  of  his  own  State.  .  .  .  No  matter 
whether  the  Legislature  of  his  State,  or  the  Courts  of  his 
State,  shall  have  pronounced  the  law  under  which  he  is 
arrested,  constitutional  or  not,  he  is  shorn  of  all  guaran- 
ties of  security,  and  must  bow  in  silence  to  the  mandate 
of  the  Federal  officer.  The  Fugitive  Slave  Act  itself 
was  an  enormous  stretch  of  Federal  power,  and  an 
abrogation,  so  far  as  it  was  itself  concerned,  of  the 
right  of  trial  by  jury;  and  now  we  see  it  compelling 
another  overturn  of  ancient  landmarks,  in  the  virtual 
denial  of  one  of  the  oldest  and  most  sacred  muniments 
of  jurisprudence.'*  Other  Republican  papers  similarly 
raised  the  standard  of  revolt,  and  expressed  the  hope 
that  Wisconsin  would  not  yield  obedience  to  the  Court's 
mandate. 
The  Wisconsin  Legislature  almost  at  once  adopted 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    68 

defiant  resolutions  declaring  the  ^*  assumption  of  juris- 
diction by  the  Federal  Judiciary"  to  be  "an  act  of 
undelegated  power,  and  therefore  without  authority 
void  and  of  no  force,"  "an  arbitrary  act  of  power,  un- 
authorized by  the  Constitution,  and  virtually  supersed- 
ing the  benefit  of  the  writ  of  habeas  corpus  and  pros- 
trating the  rights  and  liberties  of  the  people  at  the 
foot  of  unlimited  power"  and  further  declaring  that 
the  principle  contended  for,  that  "the  Greneral  Gov- 
ernment is  the  exclusive  judge  of  the  extent  of  the 
powers  delegated  to  it,  stops  nothing  short  of  des- 
potism", and  that  the  several  States  which  formed  the 
Constitution,  "being  sovereign  and  independent  have 
the  unquestionable  right  to  judge  of  its  infraction; 
and  that  a  positive  defiance  of  those  sovereignties,  of 
all  unauthorized  acts  done  or  attempted  to  be  done 
under  color  of  that  instrument,  is  the  rightful  remedy. "  ^ 
The  views  thus  announced  were  simply  a  reiteration 
of  the  notorious  Virginia  and  Kentucky  Resolutions 
of  1798-1799  and  of  South  Carolina's  Nullification 
doctrine  of  1833;  and  they  were  so  treated  in  a  stir- 
ring editorial  criticism  appearing  in  the  National  In- 
teUigencer:  "So  far  as  this  declaration  of  the  Wiscon- 
sin Legislature  affirms  that  the  mandate  of  the  Supreme 
Court  .  •  .  is  *void  and  of  no  force*,  it  was  doubt- 
less meant  to  be  nothing  more  than  brutum  fulmen, 
as  we  do  not  permit  ourselves  to  suppose  that  the  Leg- 
islature seriously  purpose  to  raise  any  practical  issue 
which  shall  have  for  its  effect  to  try  conclusions  with 
the  judicial  power  of  the  Federal  Government,  as  ex- 
ercised through  the  only  tribunal  known  to  the  Con- 
stitution. ...  As  to  the  second  declaration,  which 
under  some  confusion  of  diction,  purports  to  deny  the 
right  of  the  Supreme  Court  to  act  as  the  final  and  ex- 

>  See  especially  State  DoeumentM  on  Federal  Relatioru  (1911),  by  Herman  V.  Ames. 


64  THE  SUPREME  COURT 

elusive  judge  of  the  meaning  and  extent  of  the  powers 
granted  by  the  Constitution,  we  need  not  say  that  it 
is  but  a  rehash  of  the  Resolutions  of  '98  and  '99,  which, 
after  having  served  their  day  in  Virginia,  are  found 
reappearing  in  other  quarters.  ...  By  dint  of  long 
and  hard  usage,  they  have  come  to  be  somewhat  the 
worse  for  wear,  and  therefore  furnish  but  an  indiffer- 
ent disguise  by  which  to  hide  the  deformity  of  Nulli- 
fication." ^  The  New  York  Times  regarded  the  sit- 
uation as  serious  in  its  possibilities,  ^' since  questions 
of  jurisdiction  between  the  Supreme  Court  and  State 
tribunals  are  in  their  nature  among  the  most  danger- 
ous which  are  likely  to  arise  in  the  practical  working 
of  our  Government."  While  it  apprehended  no  ac- 
tual forcible  conflict  in  Wisconsin,  yet,  it  said,  "simi- 
lar disputes  have  heretofore  been  the  most  disturb- 
ing forces  our  political  machinery  has  been  subject 
to,  and  what  has  already  occurred  may  happen  again. 
The  remedy  must  be  looked  for  in  mutual  forbear- 
ance on  the  part  of  the  Greneral  Government  from  the 
exercise  of  odious  and  doubtful  powers,  and  on  that  of  the 
several  States,  by  acquiescence,  where  no  serious  injury 
can  result."  In  spite  of  conservative  advice  of  this 
nature  which  prevailed  generally  outside  of  abolition- 
ist circles,  the  Supreme  Court  of  Wisconsin  refused  to 
comply  with  the  mandate  of  the  Supreme  Court  of  the 
United  States.  On  September  22,  1859  —  six  months 
after  Taney's  decision  —  a  motion  was  made  and  ar- 
gued by  the  United  States  District  Attorney  to  file 
with  the  State  Court  Clerk  the  two  mandates  from  the 
Supreme  Court.  This  motion  was  not  granted,  since 
Chief  Justice  Luther  S.  Dixon  and  Judge  Orsanus  Cole 
differed  in  opinion,  and  the  third  Judge,  Byron  Paine, 

^  National  Inielligeneer,  April  1,  1859,  editorial  "The  ReMlutioos  of  *08  bearing 
Fresh  Fruit " ;  iV«io  York  TivM»,  April  11,  1859. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    65 

declined  to  act,  having  previously  been  counsel  for 
Booth  and  elected  a  Judge  for  that  reason.*  The  Fed- 
eral Courts  were  not  so  easily  to  be  prevented  from 
asserting  and  enforcing  their  authority.  Booth  was 
again  arrested  by  the  United  States  marshal  in  March, 
1860,  and  again  sued  out  a  writ  of  habeas  corpus  in  the 
State  Supreme  Court.  **This  case  brings  the  ques- 
tion of  State-Rights  to  an  issue,"  wrote  young  Carl 
Schurz,  who  had  been  retained  as  counsel.  "We  shall 
now  have  the  final  decision  of  the  great  contest  between 
the  State  of  Wisconsin  and  the  United  States  District 
Court.  It  is  really  dreadful  that  that  rascal  Booth  is 
involved  in  this  case,  and  that  the  great  cause  has  to 
bear  the  burden  of  his  sins.  But  the  principles  that 
must  be  maintained  are  of  so  lofty  a  nature  that  all 
other  considerations  vanish."  *  The  State  Court  was 
unable  to  take  any  action,  as  Judge  Paine  felt  himself 
disqualified  to  sit,  and  the  other  two  Judges  differed 
in  their  opinion.  Only  with  the  opening  of  the  Civil 
War  was  the  deadlock  broken.'  But  as  Schurz  wrote 
later:  "The  Republican  party  went  to  the  very  verge 
of  Nullification,  while  the  Democratic  party  .  .  .  be- 
came an  ardent  defender  of  the  Federal  power.  .  .  . 
Thus  in  the  North,  as  well  as  in  the  South,  men's  sym- 

1  In  re  Booth,  11  Wise.  498  In  Von  Bawnbach  v.  Bade  (1859),  9  Wise.  559,  a 
case  in  no  wise  eonnected  with  the  slavery  issue,  and  involving  a  State  mortgage 
Uw,  which  the  Court  unanimously  held  constitutional,  Judge  Paine  in  concurring 
again  felt  it  necessary  to  set  forth  his  view  that  the  State  Court  was  not  bound  by 
decisions  of  the  United  States  Supreme  Court. 

*  Speeches,  Correepondenee  and  Poliiieal  Papers  of  Carl  Schurz  (ed.  by  Frederic 
Bancroft,  1913),  II,  letter  of  March  2,  1860. 

'  The  final  decision  in  this  Booth  episode  was  rendered  after  the  opening  of  the 
War,  when  in  June,  1861,  the  Wisconsin  Supreme  Court  held  that  the  United  States 
District  Court  had  legal  jurisdiction  of  a  suit  brought  against  Booth,  by  the  Mis- 
souri owner  of  the  slave  rescued  by  Booth,  to  recover  a  penalty  for  such  rescue,  as 
authorized  by  the  Fugitive  Slave  Law,  and  that  a  judgment  for  91946  levied  on 
Booth's  printing  press  by  the  United  States  marshal,  Feb.  24,  1857,  was  a  valid 
judgment,  which  would  not  be  collaterally  attacked  in  the  State  Court,  on  the 
ground  that  the  Fugitive  Slave  Law  was  unconstitutional.  Arnold  v.  Booth  (1861)» 
14  Wise.  180. 

VOL.  Ill  —  3 


66  THE  SUPREME  COURT 

• 

pathies  with  regard  to  slavery  shaped  and  changed 
their  political  doctrines  and  their  constitutional  theo- 
ries. In  the  South,  it  was  State-Rights  or  the  su- 
premacy of  the  Federal  power,  as  the  one  or  the  other 
furthered  the  interests  of  slavery;  in  the  North,  it 
was  State-Rights  or  the  supremacy  of  the  Federal 
power,  as  one  or  the  other  furthered  the  interests  of 
freedom/*  ^ 

Meanwhile,  a  similar  disregard  of  the  Court's  deci- 
sion was  shown  in  the  State  of  Ohio,  where  for  many 
years  conflicts  of  jurisdiction  between  the  State  and 
Federal  Courts  had  taken  place  in  the  case  of  fugitive 
slaves.  In  the  spring  of  1859,  just  after  the  decision 
of  the  Booth  Case,  trials  were  held  in  the  Federal  Dis- 
trict Court  for  the  Northern  District  of  Ohio,  of  the 
famous  Oberlin  Rescue  Cases  —  indictments  for  vio- 
lation of  the  Fugitive  Slave  Law.  After  conviction 
and  sentence  of  the  defendants,  the  Supreme  Court 
of  Ohio,  in  deliberate  defiance  of  the  decision  in  the 
Booth  CasCy  issued  writs  of  habeas  corpus  for  the  de- 
fendants then  in  custody  of  the  United  States  mar- 
shal, and  the  State  Court  proceeded  to  assume  the 
power  to  decide  for  itself,  the  constitutionality  of  the 
Federal  Law  involved.  Fortunately,  its  decision  was 
rendered  in  favor  of  sustaining  the  validity  of  the  Law ; 
and  thus  a  direct  conflict  between  the  Federal  and 
State  authorities  was  avoided.*    The  opinion,  coura- 

^  Remimscmcss  cf  Carl  Schurz  (1907),  II,  105-115.  Schun  wrote  that  when  he 
published  his  speeches  in  1865,  he  omitted  his  speeches  in  the  Wisconsin  campaign 
in  1859,  "because  a  more  mature  judgment  had  convinced  me  that,  not  indeed  the 
fundamental  theory  of  democracy,  but  the  conclusions  drawn  from  it  as  to  the  func- 
tions and  necessary  power  of  Government,  were  unsound." 

'  As  to  these  Oherlin  Rescue  Caset  —  Untied  States  v.  Simeon  BushneU,  UnUed 
States  V.  Langstan  and  Ex  parU  BushneU,  9  Ohio  State,  77-825  —  see  History  cf  Ohio 
(191£),  by  Emilius  O.  Randall  and  Daniel  J.  Ryan,  IV,  and  see  interesting  accounts 
and  editorials  in  Cleveland  National  Democrat,  March  17,  April  8,  18,  15,  16,  25, 
86,  28,  29,  80,  May  11,  19,  81,  June  6,  10,  1859;  Ohio  Statesman,  April  19,  28,  24. 
27,  28.  29,  May  8,  4,  28,  29,  81,  1859.  It  may  be  noted  that  because  of  his  deci- 
sion in  this  case,  the  very  able  Chief  Justice,  Swan,  was  refused  renomination  to 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    67 

geously  given  by  a  Republican  Chief  Justice,  resulted, 
however,  in  his  defeat  for  renomination,  a  few  weeks 
later,  at  the  instance  of  Chase,  Wade  and  Giddings, 
the  abolitionist  leaders.  The  seriousness  of  the  sit- 
uation was  reflected  by  the  statement,  commonly  made 
at  the  time,  that  had  the  Court  decided  otherwise. 
Governor  Chase  stood  ready  to  use  the  State  troops  in 
defense  of  its  jurisdiction  against  the  Federal  autiiori- 
ties;  and,  as  a  Democratic  paper  said:  '^A  conflict 
would  have  been  the  consequence,  and  thus  would 
civil  war  have  for  a  time  existed;  for  they  may  rest 
assured  that,  under  no  circumstances,  would  they  have 
been  permitted  to  carry  out  their  mad,  treasonable 
design  of  nullifying  the  laws  of  the  United  States,  and 
substituting  anarchy  and  misrule  in  the  place  of  law  and 
the  Constitution."  A  Republican  paper  stated,  however, 
that  the  law  would  be  obeyed,  but  only  until  such  time 
as  the  Federal  Supreme  Court  should  be  reformed.^ 

In  Congress,  the  decision  of  the  Booth  Case  brought 
forth  denunciations  of  the  Court,  nearly  as  strong  as 
those  which,  in  1858,  followed  the  Dred  Scott  Case; 
and  many  speeches  were  made  in  defense  of  the  legis- 
lation of  the  various  States,  known  as  the  Personal 
Liberty  Laws,  enacted  for  the  purpose  of  nullifying  the 
enforcement  of  the  Fugitive  Slave  Law.*  In  a  debate 
on  the  subject,  Senator  Hale  stated  that  for  thirty 
years  the  Court  had  consisted  only  of  politicians,  that 

Uie  Bench  by  the  Republican  Party  at  its  next  spring  convention  —  an  interesting 
eiample  of  the  evils  of  a  judicial  recall  system. 

'  CUoeUmd  National  Democrat,  May  81,  1859,  and  also  quoting  Dayton  RepMi" 
eon  Qautte,  In  i6u2..  May  28,  1859,  it  was  said  editorially :  "The  Okio  State  Jour- 
nal  thinks  that  we  regard  the  State  of  Ohio  *not  as  a  sovereign  State  but  as  a  mere 
Province  of  the  Federal  Government.'  .  .  .  But  as  a  member  of  the  Federal 
Union,  the  State  of  Ohio  b  bound  to  respect  that  law.  ...  It  does  not  become 
the  Executive  of  the  State  to  encourage  resistance,  nor  the  Court  to  meditate  its 
nullification." 

'  The  so-called  Personal  Liberty  Laws  had  been  passed  in  Maine,  New  Hamp- 
shire, Vermont,  Massachusetts,  Rhode  Island,  Connecticut,  Michigan,  Wiscon- 
sin, Iowa  and  Ohio. 


68  THE  SUPREME  COURT 

it  was  now  a  dangerous  department  of  the  Govern- 
ment, that  ^'its  history  has  verified  all,  and  more  than 
all,  that  JeflFerson  ever  prophesied  of  it'*,  that  its  opin- 
ion upon  political  questions  should  have  no  weight. 
"If  its  encroachments  will  not  be  met  by  Congress  they 
must  be  met,  as  Jefferson  said,  by  the  action  of  the  State 
Governments/'  ^  After  praising  the  past  action  of  Vir- 
ginia and  Georgia  in  disobeying  the  mandates  of  the 
Court,  and  after  indorsing  the  alleged  views  of  Jeffer- 
son, Jackson  and  Buchanan  as  to  freedom  of  Congress 
from  control  by  the  Court's  decisions,  Hale  derided  the 
"new  doctrine  of  the  infallibility  of  the  Court  now  en- 
tertained by  the  Democratic  party",  which,  he  said, 
"after  fighting  a  life-long  battle  against  the  Court,  had 
now  become  great  sticklers  for  the  dignity  and  binding 
authority  of  the  Court. ' '  Senator  DooK ttle  of  Wisconsin 
also  indorsed  the  rebellious  actions  of  Pennsylvania, 
Virginia  and  Georgia  in  the  past,  and  rejoiced  that 
the  Supreme  Court  of  Wisconsin  had  followed  their 
example.  While  acknowledging  the  "distinguished 
ability,  industry  almost  unequalled,  honesty  of  purpose 
and  pure  and  upright  personal  character**  of  Taney, 
he  stated  that  the  tendency  of  the  Chief  Justice  and 
of  his  Court  was  to  absolutism,  by  the  consolidation  of 
all  power  in  that  branch  of  the  Government,  and  that 
the  questions,  whether  that  Court  was  to  be  the  sole 
ultimate  judge  as  to  the  powers  delegated  by  the  Con- 
stitution to  the  Federal  Government  or  reserved  to 
the  States,  and  whether  upon  all  constitutional  ques- 
tions the  Supreme  Courts  of  the  States  are  inferior  and 
subordinate  to  the  Federal  Courts,  had  always  been 
the  battleground  of  the  political  contests  in  this  coun- 

1  S6ih  Cong.,  IH  Sess,  and  App,;  speeches  in  1860  of  Hale,  Feb.  14,  Doolittle, 
Feb.  24,  Collamer,  March  8,  Grimes,  Feb.  24,  Wade,  March  7,  Conkling,  April  16, 
17;  see  also  speeches  of  Bingham,  April  24,  in  the  Senate  and  of  T.  B.  Florence  of 
April  12,  in  the  House. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    69 

try.  He  admitted  that  the  Republicans  hitherto  had 
espoused,  and  the  Democrats  opposed,  the  "Federal 
doctrine  of  judicial  supremacy'';  but  now,  he  asked: 
"For  what  purpose  have  the  Democrats  set  up  this 
judicial  Vatican?  Why  should  the  leaders  of  this 
party  interpolate  into  its  creed,  this  new  dogma  of 
the  supreme,  infallible,  and  irrevocable  doctrine  of  the 
Supreme  Court?"  And  he  uttered  the  prediction, 
that  if  the  power  of  the  Court  to  decide  on  the  validity 
of  laws  for  all  other  departments  should  be  continued, 
"the  days  of  the  empire  will  commence  soon  after." 
Senator  Collamer  of  Vermont  said  he  would  not  bow 
down  to  the  Court  "as  to  the  inscrutable  dispensa- 
tion of  Divine  Providence."  In  the  House,  Roscoe 
Conkling,  a  Republican  Congressman  from  New  York 
(who  only  twelve  years  later  was  ofifered  appointment 
as  Chief  Justice),  delivered  a  violent  assault  on  the 
Court  and  its  "imperial  assumptions",  stating  that 
"wherever  a  decision,  in  the  judgment  of  Congress, 
is  subversive  of  the  rights  and  liberties  of  the  people, 
or  is  otherwise  hurtfuUy  erroneous,  it  is  not  only  the 
right,  but  the  solemn  duty,  of  Congress  to  disregard 
it";^  and  he  also  cited  Jefferson  and  Jackson  as  his 

1  Conkling's  speech  was  directed  at  the  statement  by  President  Buchanan  in 
his  Third  Annual  Message  to  Congress,  Dec.  19, 1859,  as  fcJlcvs : 

"I  cordially  congratulate  you  upon  the  final  settlement  by  the  Supreme  Court 
€A  the  United  States  of  the  question  of  slavery  in  the  Territories  which  had  pre- 
sented an  aspect  so  truly  formidable  at  the  commencement  of  my  administration. 
The  right  has  been  esUblished  of  every  citizen  to  take  his  property  of  any  kind 
including  slaves  into  the  common  Territory  belonging  equally  to  all  the  States  of 
the  Confederacy  and  to  have  it  protected  there  under  the  Federal  Constitution. 
Neither  Congress  nor  a  Territorial  legislature  nor  any  human  power  has  any  au- 
thority to  annul  or  impair  this  vested  right.  The  Supreme  Judicial  tribunal  of 
the  country  which  is  a  coordinate  branch  of  the  Government  has  sanctioned  and 
affirmed  these  principles  of  constitutional  law  so  manifestly  just  in  themselves 
and  so  well  calculated  to  promote  peace  and  harmony  among  the  States." 

Buchanan,  as  late  as  his  Fourth  Annual  Message,  Dec.  8, 1860,  continued  to  main- 
tain the  correctness  and  supremacy  as  law  of  the  Dred  Scott  decision,  saying  that 
"such  has  been  the  factious  temper  of  the  times",  that  it  has  been  "extensively 
impugned  before  the  people  and  the  question  has  given  rise  to  angry  political  oon- 
fiicU  throughout  the  country." 


70  THE  SUPREME  COURT 

authorities.  He  advocated  *^a  reorganization  and 
reinvigoration  of  the  Court,  with  just  regard  to 
commercial  and  political  considerations.  ...  It  is 
high  time  that  appropriate  weight  shall  be  given  in 
the  Court  and  elsewhere  to  all  portions  of  the 
country,  not  excepting  those  in  which  a  vast  pre- 
ponderance of  its  wealth,  its  business  and  its  numbers 
reside/* 

Speeches  of  this  nature  were  commended  by  radical 
anti-slavery  papers  like  the  IndependenU  which  spoke 
of  the  "encroachments"  of  the  Judiciary  "at  the  will 
and  instigation  of  the  Slave  Oligarchy.  .  .  .  The 
Supreme  Court,  in  the  defense  of  slavery,  has  become 
the  great  teacher  of  injustice  and  iniquity,  the  sapper 
and  miner  of  our  liberties,  the  great  agent  of  the  powers 
of  darkness  in  debauching  the  conscience  of  the  coun- 
try and  thus  preparing  the  people  to  become  the  vic- 
tims of  the  slave  despotism.'*  ^ 

On  the  other  hand,  eloquent  defenses  of  the  Court 
were  made  in  Congress.  "We  have  hitherto  debated," 
said  Senator  Robert  Toombs,  of  Geor^a,  "the  su- 
premacy of  the  Federal  Courts  over  the  State  Courts ; 
but  Wisconsin  has  asserted  the  supremacy  of  the 
State  Courts  over  the  Federal  Courts.  Nobody  ever 
claimed,  until  Wisconsin,  that  a  State  Court,  high  or 
low,  could  seize  a  case  in  the  Federal  Courts  and  re- 
view it.  •  .  .  Wisconsin  has  outstripped  all  of  her 
delinquent  sisters  in  their  disgraceful  race  of  infidelity 
to  the  compact."  John  W.  Noell  of  Missouri,  in  the 
House,  made  a  particularly  able  speech,  denouncing 
those  Republicans  who,  like  Conkling,  "had  raised  on 
the  floor  of  Congress  the  standard  of  rebellion  to  the 

^Independent,  March  1,  8,  1860;  S6th  Cong,,  let  Sees,,  and  App.,  speeches  of 
Toombs,  Jan.  M,  Feb.  %7,  March  7, 1860,  speeches  of  Noell,  April  25,  Reagan  of 
Texas,  Jan.  4,  Larrabee  of  Wisconsin,  Jan.  4,  1860. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    71 

decrees  of  the  Court.  Though  that  Department  still 
preserves  its  ancient  purity  and  firmness,  it  has  not 
kept  pace  with  their  progressive  fanaticism.  Its  au- 
thority to  decide  questions  of  constitutional  law  is 
now  gravely  disputed.  .  .  .  These  modem  Solons 
have  discovered  a  great  distinction  between  questions 
which  they  call  political  and  those  which  are  not  po- 
litical. Every  question,  while  it  is  pending  here  is  a 
political  question,  and  every  question,  when  it  is  trans- 
ferred to  the  Judiciary  is  a  judicial  question.  No  law 
passed  by  Congress  affecting  the  rights  of  persons  or 
the  rights  of  property  but  must  be  decided  upon  and 
enforced  by  the  Judiciary.  .  .  .  No  man  contends 
that  a  judgment  or  opinion  of  the  Federal  Judiciary 
can  tie  the  hands  of  Congress;  but  every  man  who 
has  read  the  hornbooks  of  the  profession  ought  to  know 
that,  when  we  enact  a  law,  its  validity  and  constitution- 
ality must  be  determined  by  the  Judiciary.  That  de- 
termination in  this  particular  instance  can  only  be 
avoided  by  rebellion  or  revolution." 

These  years  of  turmoil  in  politics  and  of  conflict  over 
the  Court's  decisions  affecting  the  slavery  issue,  ex- 
tending from  1854  to  1860,  were  productive  of  few  other 
cases  of  supreme  importance  in  American  legal  history ; 
and  they  may  be  briefly  summarized. 

With  the  year  1855,  there  came  to  an  end  the  long 
series  of  cases  in  which,  for  twenty-five  years,  the  Court 
had  been  confirming  vast  numbers  of  imperfect  grants 
made  by  Spanish  ofiScials  in  Florida,  Louisiana  and 
Missouri  prior  to  the  cessions  of  those  territories  ;  and 
though  many  of  these  claims  had  been  of  an  extremely 
suspicious  character,  the  Court,  in  its  scrupulous  ob- 
servance of  the  spirit  of  the  treaties  with  France  and 
Spain,  had  preferred  to  err  on  the  side  of  justice  to  the 
claimant,  rather  than  to  give  the  benefit  of  the  doubt 


72  THE  SUPREME  COURT 

to  the  Government.^  But  with  the  disappearance 
of  these  cases  from  its  docket,  there  arose  the  first  of 
another  series  which  lasted  for  a  further  quarter  of  a 
century;  and  in  Cervantes  v.  United  States ,  16  How, 
619,  and  Fremont  v.  United  States^  17  How.  442,  gen- 
eral doctrines  of  law  were  outlined,  on  which  the  Court 
was  to  decide  the  many  great  Mexican  land  claims 
arising  in  California,  Texas  and  the  Southwest  terri- 
tories. In  these  cases,  the  Court  again  showed  its 
anxiety  to  protect,  to  the  utmost,  rights  originating 
under  grants  from  the  foreign  government  with  which 
the  United  States  had  concluded  a  treaty.^ 

On  February  19,  1856,  in  Murray  v.  Hoboken  Land 
and  Improvement  Co.^  18  How.  272,  the  Court,  for  the 
first  time  since  1819,  interpreted  the  meaning  of  "due 
process  of  law  "  as  contained  in  the  Fifth  Amendment.' 
The  case,  argued  with  great  ability  by  Benjamin  F. 

^  A  few  daims  for  very  large  tracts,  where  no  sufficient  identification  had  taken 
place  before  cession,  were  rejected ;  see  United  States  v.  Kingsley,  12  Pet.  476,  five . 
miles  square;  United  States  v.  DeUspine,  15  Pet.  319,  02, 160  acres;  United  States 
V.  Miranda,  16  Pet.  158,  368,640  acres;    United  States  v.  BaisdorS,  11  How.  63, 
a  tract  of  15  by  40  miles;  Doe  v.  Braden,  16  How.  635,  12,000,000  acres. 

*  The  case  of  the  claim  of  John  C.  Fremont  "of  unusual  public  interest"  was 
argued  Feb.  20,  21,  22,  1855,  and  was  described  by  the  Natumal  Intelligeneer, 
Feb.  26,  as  follows:  "The  venerable  and  learned  Mr.  Chancellor  (George  M.) 
Bibb  followed  Mr.  Jones  on  the  same  side  in  a  dear,  comprehensive  and  argumenta- 
tive address,  crowding  the  merits  of  the  case  into  the  brief  space  of  half  an  hour. 
Attorney-General  Gushing  followed  on  behalf  of  the  United  States,  and  charmed 
a  large  and  brilliant  audience,  during  two  hours  on  Wednesday  morning,  by  a  dis- 
course of  unusual  interest  and  strength,  a  good  portion  of  it  historical,  and  having 
the  attractiveness  of  romance,  and  all  of  it  such  as  to  engross  the  attention  of  the 
Court,  the  Bar  and  all  hearers.  The  Attorney-General  was  replied  to,  and  the 
argument  of  the  cause  concluded,  by  Hon.  John  J.  Crittenden.  Mr.  Crittenden 
brought  into  the  argument,  not  only  legal  acumen  and  research,  but  all  the  impas- 
sioned eloquence  that  has  distinguished  his  most  powerful  efforts,  whether  in  the 
Senate  or  before  judicial  forums,  and  was  listened  to  with  marked  attention  by  a 
crowded  audience  of  the  beauty  and  intellect  at  present  congregated  in  the  city. 
.  .  .  We  presume  from  all  we  have  heard  that  the  eloquent  Kentuckian  equalled, 
if  he  did  not  surpass,  any  previous  effort,  forensic  or  Senatorial;  he  certainly 
never  produced  a  higher  admiration  of  his  powers,  or  ever  received  more  emphatic 
applause,  from  the  grave  members  of  the  Bench,  we  believe,  as  well  as  the  Bar  and 
crowded  auditory."  See  also  ibid.,  March  11, 1855 ;  Philadelphia  North  American, 
Feb.  21,  1855. 

*  See  Johnson,  J.,  in  Bank  of  Columbia  v.  Okdy  (1819),  4  Wheat.  235. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    73 

Butler,  George  Wood  and  Edgar  S.  Van  Winkle  against 
Ransom  H.  Gillet,  Joseph  P.  Bradley  and  A.  O.  Za- 
briskie,  involved  the  rights  of  a  purchaser  of  land  sold 
under  a  distress  warrant  issued  by  the  Solicitor  of  the 
Treasury  against  lands  of  Samuel  Swartwout  —  a 
former  notorious  collector  of  customs  at  New  York, 
who  had  defaulted  in  the  sum  of  $1,479,000.  The 
Court  held  that  such  a  sununary  method  for  the  re- 
covery of  debts  due  to  the  Government  from  defaulting 
receivers  of  the  revenue  constituted  due  process,  even 
though  no  Court  trial  was  provided,  inasmuch  as  such 
methods  were  known  to  the  old  English  law. 

At  the  December  Term  of  1857,  in  Jackson  v.  Steam- 
boat Ma^nolia^  20  How.  296,  the  Court  completed  the 
reversal  of  the  former  narrow  doctrines  as  to  the  extent 
of  admiralty  jurisdiction  entertained  by  Marshall. 
The  question  involved  was  whether  the  Federal  Court 
had  jurisdiction  over  a  libel  for  a  collision  on  the  Ala- 
bama River  above  tidal  flow  and  wholly  within  the 
State  of  Alabama.  The  case  was  twice  argued;  and 
the  decision  upheld  the  Federal  admiralty  powers  in 
the  most  sweeping  manner.  It  is  a  "" remarkable"  and 
"startling  assumption  of  power",  said  Judge  Daniel, 
again  dissenting  and  fearful  of  the  Court's  "indefinite 
and  indefinable  pretensions"  and  the  "ceaseless  march 
of  central  encroachments."  In  spite  of  such  fears  on 
the  part  of  its  dissenting  Judge,  the  Court  showed  it- 
self zealous  to  defend  the  State  sovereignty  in  Taylor 
V.  Carryl,  20  How.  583,  by  holding  that  a  vessel  at- 
tached in  a  State  Court  could  not  be  sold  by  a  United 
States  marshal  on  an  order  from  the  United  States 
District  Court  in  a  libel  for  seamen's  wages.  The  case, 
said  Judge  Campbell,  had  been  regarded  in  this  Court 
as  one  of  importance,  but  it  did  not  present  a  new  ques- 
tion and  "is  not  determinable  upon  any  novel  prin- 


74  THE  SUPREME  COURT 

ciple.  .  •  .  It  forms  a  recognized  portion  of  the  duty 
of  this  Court  to  give  preference  to  such  principles  and 
methods  of  procedure  as  shall  serve  to  conciliate  the  dis- 
tinct and  independent  tribunals  of  the  States  and  of  the 
Union,  so  that  they  may  cooperate  as  harmonious  mem- 
bers of  a  judicial  system  coextensive  with  the  United 
States,  and  submitting  to  the  paramoimt  authority 
of  the  same  Constitution,  laws  and  federal  obligation. 
The  decisions  of  this  Court  that  disclose  such  an  aim, 
and  that  embody  the  principles  and  modes  of  admin- 
istration to  accomplish  it,  have  gone  from  the  Court 
with  authority,  and  have  returned  to  it,  bringing  the 
vigor  and  strength  that  are  always  imparted  to  magis- 
trates, of  whatever  class,  by  the  approbation  and  con- 
fidence of  those  submitted  to  their  government."  ^ 
It  is  interesting  to  note  that  this  strong  defense  of  the 
State  tribunals  was  uttered  on  May  18,  1858,  and  less 
than  a  year  before  the  Court's  equally  strong  defense 
of  National  supremacy  in  the  Booth  Case. 

At  the  December  Term  of  1858,  important  questions 
of  business  law  came  before  the  Court.  In  Covington 
Drawbridge  Co.  v.  Shepherd,  21  How.  112,  argued  by 
Oliver  H.  Smith  against  Richard  W.  Thompson,  the 
question  of  the  power  of  a  Court  in  equity  to  appoint 
a  receiver  for  a  corporation  to  collect  tolls  and  hold 
them  for  creditors,  was  presented  for  the  first  time; 
and  though  now  so  familiar  a  practice,  it  was  then  said 
to  be  a  "question  of  great  importance  and  some  diflS- 
culty."  The  Court,  however,  sustained  the  power. 
The  first  of  a  tremendously  long  line  of  cases  involving 
the  validity  of  municipal  bonds  when  held  by  a  bona 
fide  purchaser  was  decided  in  Commissioners  of  Knox 
County  V.  AspinwaU,  21  How.  539;    and  two   years 

^  The  caae  was  twice  argued  at  tluB  Term,  first  on  Dec.  14,  1857,  and  again  on 
April  It,  18, 14,  IS5S,  by  William  M.  Evarts  against  John  Cadwalader  and  Samuel 
Hood. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    75 

later  in  this  case  (24  How.  376) ,  it  was  held  that  such 
bondholders  might  obtain  a  mandamus  from  the  Cir- 
cuit Court  to  compel  an  Indiana  municipality  to  levy 
a  tax  to  satisfy  a  judgment  rendered  in  a  suit  on  the 
bonds.  This  was  the  first  case  in  a  Federal  Court  in 
which  a  mandamus  was  issued  against  a  State  official.^ 
Railroad  bonds  were  also  for  the  first  time  decided  to 
be  negotiable  instruments,  in  White  v.  Vermont  and 
Massachusetts  R.  R.  Co.,  21  How.  575,  Judge  Nelson 
saying  that  **  within  the  last  few  years,  large  masses  of 
them  have  gone  into  general  circulation  and  in  which 
capitalists  have  invested  their  money  " ;  and  if  the  qual- 
ity of  negotiability  were  not  conceded  to  them,  the 
value  of  such  securities  "'as  a  means  of  furnishing  the 
funds  for  the  accomplishment  of  many  of  the  great- 
est and  most  useful  enterprises  of  the  day  would  be 
impaired.'* 

The  December  Term  of  1859  was  a  long  one,  the 
Court  adjourning  on  May  4,  1860.  The  Chief  Jus- 
tice and  Judge  Daniel  were  both  too  ill  to  sit  on  the 
Bench,  and  considerable  fear  was  expressed  lest  the 
former  might  never  return.  Talk  was  rife  as  to  the 
possibility  of  the  appointment  by  President  Buchanan 
of  either  the  Attorney-General,  Jeremiah  S.  Black, 
or  the  former  Attorney-General,  Caleb  Cushing,  as 
Taney's  successor;*  and  the  weakened  condition  of 
the  Court  gave  rise  to  renewed  demand  for  a  relief 
of  the  Judges  from  Circuit  duty,  so  that  they  might 
devote  more  time  to  clearing  the  overloaded  docket 
in  the  Supreme  Court.     "This  reorganization  is  not  a 

*  See  also  AspinwaU  v,  Dmei—  Co,,  22  How.  864 ;  BisM  ▼.  JtfffwmnwiXU,  24 
How.  287;  Amey  ▼.  Allegheny  City,  24  How.  864;  Juriedietion  in  Mandamue  in 
United  Siaiee  Courte,  by  Glendower  Evans,  Amer.  Law  Ree.  (1885),  XIX. 

s  New  York  Tribune,  Feb.  14,  April  27, 1860;  New  York' Evening  Poet,  Dec.  14, 
1860,  said  that  Taney's  resignation  was  unlikely:  "He,  like  Mr.  Buchanan, 
takes  a  sort  of  mdancholy  satisfaction  in  being  the  last  incumbent  d  the  office  he 
holds." 


76  THE  SUPREME  COURT 

boon  to  the  Judges,  but  a  benefit  to  the  public/*  re- 
quired by  the  demand  for  justice  for  litigants.^  At 
this  Term,  the  suits  involving  California  land  claims 
continued  to  occupy  a  large  proportion  of  the  Court's 
time,*  and  few  cases  of  historical  importance  were  de- 
cided. Two  may  be  noted,  however.  In  Sinnot  v. 
Davenportf  22  How.  227,  an  Alabama  shipping  law  was 
held  to  be  in  conflict  with  legislation  by  Congress  as 
to  coasting  trade,  and  therefore  imconstitutional ; 
and  again  the  supremacy  of  the  National  Government 
was  powerfully  set  forth  by  the  Court.  To  the  argu- 
ment that  the  State  statute  was  merely  an  exercise 
of  the  State  police  power.  Judge  Nelson  answered  that 
State  legislation  enacted  in  the  exercise  of  an  undis- 
puted reserved  power  must  yield  to  an  Act  of  Con- 
gress passed  in  the  exercise  of  a  clear  power  under  the 
Constitution.  "There  has  been  much  controversy, 
and  probably  will  continue  to  be,  both  by  the  Bench 
and  the  Bar,  in  fixing  the  true  boundary  line  between 
the  power  of  Congress  under  the  commercial  grant  and 
the  power  reserved  to  the  States.  But  in  all  these  dis- 
cussions, or  nearly  all  of  them,  it  has  been  admitted, 
that  if  the  Act  of  Congress  fell  clearly  within  the  power 
conferred  upon  that  body  by  the  Constitution,  there 
was  an  end  of  the  controversy.  The  law  of  Congress 
was  supreme." 

In  Alabama  v.  Georgia^  23  How.  605,  argued  on  De- 
cember 14,  1859,  and  decided  on  May  1,  1860,  the  sin- 
gular condition  was  presented  of  two  States  of  the 
Union,  on  the  very  eve  of  their  secession,  submitting 

>  PkOaddplna  North  AtMriean,  Mftich  14.  1850,  Feb.  15, 1860. 

'  Among  tlie  most  important  cases  won  by  the  Govenmient  were  UniUd  States 
y.  BoUon,  28  How.  841,  involving  about  80,000  acres  in  San  Francisco,  argued 
April  2,  1860,  by  Attorney-General  Black  and  William  B.  Reed  of  Philadelphia 
against  J.  Mason  Campbell  and  Robert  J.  Walker;  Ltieo  v.  United  States,  28  How. 
515,  involving  about  200,000  acres,  argued  by  Caleb  Gushing  against  Edwin  M. 
Stanton.    See  New  York  Tribune,  April  12, 1860. 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    77 

controversies  over  their  boundary  line  to  the  Supreme 
Court,  for  decision  under  the  Constitution  which  they 
were  about  to  repudiate.* 

Within  three  days  from  the  date  of  this  decision, 
the  Dred  Scott  Case  developed  its  most  potent  conse- 
quence, when,  on  May  S,  1860,  the  Democratic  Party 
then  holding  its  National  Convention  at  Charleston 
broke  up  in  dissension,  to  reassemble  six  weeks  later 
in  two  irreconcilable  wings  and  to  present  two  nominees 
for  the  Presidency  —  Stephen  A.  Douglas  and  John 
C.  Breckinridge,  representing  hopelessly  irreconcil- 
able views.  In  thus  splitting  the  Democratic  Party, 
the  Dred  Scott  decision  had  an  even  greater  effect  upon 
American  history  than  in  solidifying  the  anti-slavery 
sentiment  at  the  North.  When,  in  1855,  Douglas  had 
succeeded,  through  the  passage  of  his  Kansas-Ne- 
braska Bill,  in  establishing  his  doctrine  of  ""  squatter 
sovereignty",  the  party,  united  and  enthusiastic,  had 
regarded  the  legislation  as  a  final  and  practical  solu- 
tion of  the  slavery  question.  The  language  of  the 
statute  that  it  was  ^'the  true  intent  and  meaning  of 
this  Act  not  to  legislate  slavery  into  any  Territory  or 
State  or  to  exclude  it  therefrom,  but  to  leave  the  peo- 
ple thereof  perfectly  free  to  form  and  regulate  their 
domestic  institutions,  subject  only  to  the  Constitution 
of  the  United  States",  was  believed  to  fix  definitely 
the  principle  of  non-intervention  by  Congress  with 
slavery  in  the  States  and  Territories,  which  had  been 
adopted  in  the  Compromise  of  1850.    There  was,  how- 

^  In  1855,  an  interesting  point  of  practice  had  been  decided ;  in  an  original  suit 
between  States  to  establish  a  boundary  line,  Florida  v.  Oeorgia,  17  How.  478,  the 
Attorney-General  of  the  United  States  was  permitted  to  intervene  on  behalf  of  the 
Government  and  to  adduce  evidence,  examine  witnesses  and  be  heard  on  argu- 
ment; four  Judges  (Curtis,  McLean,  Campbell  and  Daniel)  dissented,  contending 
that  to  permit  such  intervention  was  to  allow  a  suit  against  a  State  by  the  United 
States  which  the  Constitution  did  not  provide  for.  It  is  interesting  to  note  that 
in  this  defense  of  the  rights  of  the  State,  two  Northern  Judges  joined  with  two 
Soatbem.    See  for  histocy  of  this  diq>ute,  e<^M  v.  OniOMr  (1887),  123  U.  S.  1. 


78  THE  SUPREME  COURT 

ever,  an  unforeseen  ambiguity  in  this  language  which 
was  destined  to  prove  fatal  to  the  Democratic  Party. 
The  intention  of  Senator  Douglas  was  to  give  the  peo- 
ple of  the  Territory  the  right  to  decide  for  themselves 
on  the  subject  of  slavery ;  but  the  question  soon  arose : 
Was  this  right  given  to  the  Territorial  Legislature  or 
only  to  the  people  of  the  Territory  when  framing  its 
Constitution  preparatory  to  admission  as  a  State? 
It  was  answered  when  Chief  Justice  Taney,  in  his  de- 
cision in  1857,  announced  flatly  that  as  Congress  had 
no  power  to  exclude  slavery,  so  it  could  not  authorize 
a  Territorial  Government  to  exercise  such  a  power. 
"It  could  confer  no  power  on  any  local  government, 
established  by  its  authority,  to  violate  the  provisions 
of  the  Constitution.**  This  was  a  body  blow  to  Doug- 
las '  theory  of  popular  sovereignty  in  the  Territories ; 
and  thereafter,  his  attempts  to  maintain  it  were  in  vain. 
Republicans  and  Democrats  alike  quoted  Taney's 
decision  against  him.  The  main  body  of  Southern 
Democrats,  after  1857,  insisted  that  their  party  plat- 
form should  embody  the  exact  language  of  the  Dred 
Scott  Case^  and  should  not  admit  the  right  of  a  Terri- 
tory to  deal  in  any  way  with  the  subject  of  slavery, 
except  through  its  Constitution  adopted  for  the  pur- 
pose of  becoming  a  State.  Douglas,  however,  con- 
tinued to  fight  for  his  pet  doctrine,  as  the  only  fair 
solution  of  the  question ;  and,  in  1859,  he  wrote  that 
he  could  not  be  the  Democratic  candidate  for  Presi- 
dent if  the  party  insisted  on  the  principle  "that  the 
Constitution  either  established  or  forbade  slavery  in 
the  Territories,  beyond  the  power  of  the  people  to  con- 
trol it  as  other  property."  It  was  on  this  issue  that 
the  party  divided  in  1860  into  two  opposing  factions.^ 

1  See  especially  A  Hidory  qf  the  Ameriean  People  (1902),  by  Woodrow  Wilson. 
TV;  The  LaH  Cause  (1867),  by  Edward  A.  Pollard ;  Life  and  Timee  of  WiUiam 
Loumdee  Yancey  (1892),  by  John  W.  DuBom;  PoUHeal  Hietory  ofSeceeeion  (1914). 


BOOTH  CASE,  CONGRESSIONAL  ATTACK    79 

Had  it  not  been  for  such  division,  Lincoln's  election 
might  have  been  doubtful;  for  the  popular  vote  for 
the  combined  opposing  candidates  in  California  and 
Oregon  far  exceeded,  and  in  Ohio,  Indiana  and  Illi- 
nois very  nearly  equaled,  the  vote  cast  for  Lincoln ; 
while  of  the  popular  vote  over  the  whole  country  Lin- 
coln received  only  1,866,452  as  against  2,223,110  cast 
for  his  Democratic  opponents  and  590,636  cast  for 
John  Bell,  the  candidate  of  the  Constitutional  Union 
party.  It  may  fairly  be  said  that  Chief  Justice  Taney 
elected  Abraham  Lincoln  to  the  Presidency. 

by  Dankl  Wait  Howe;  Our  PretidenU  and  How  We  Mak§  Th$m  (1900),  by  A.  K. 
McClure. 

The  Dottglas  Platform  on  slavery  was  as  follows:  "That  the  Democratic  party 
will  abide  by  the  decisions  oi  the  Supreme  Court  of  the  United  States  on  the 
questions  of  constitutional  law.  That  .  .  .  during  the  existence  of  the  Territorial 
Governments,  the  measure  of  restriction,  whatever  it  may  be,  imposed  by  the  Fed- 
eral Constitution  on  the  power  of  the  Territorial  Legislature  over  the  subject  of 
the  domestic  relations,  as  the  same  has  been,  or  shall  hereafter  be,  determined  by 
the  Supreme  Court  of  the  United  States,  should  be  respected  by  all  good  citisens» 
and  enlForced  with  promptness  and  fidelity  by  eveiy  branch  of  the  General  Gov- 
ernment. 

The  Bredcinridge  Platform  was  as  follows :  "  That  the  Government  of  a  Terri- 
tory organized  by  an  Act  of  Congress  is  provisional  and  temporary,  and  during 
its  existence  all  citizens  of  the  United  States  have  an  equal  right  to  settle  with 
their  property  in  the  Territory,  without  their  rights,  either  of  person  or  of  property, 
being  destroyed  or  impaired  by  Congressional  legislation.  That  it  is  the  duty  of 
the  Federal  Government,  in  all  its  departments,  to  protect,  when  necessary,  the 
rights  of  persons  and  property  in  the  Territories,  and  wherever  else  its  constitu- 
tional auUiority  extends.  That  when  the  settlers  in  a  Territory,  having  an  ade- 
quate population,  form  a  State  Constitution,  the  right  of  sovereignty  conmiences, 
and  being  consummated  by  admission  into  the  Union,  they  stand  on  an  equal  foot- 
ing with  the  people  of  other  States;  and  the  State  thus  organized  ought  to  be  ad- 
mitted into  the  Federal  Union,  whether  its  Constitution  prohibits  or  recognizes 
the  institution  of  slavery." 


CHAPTER  TWENTY-EIGHT 

CIVIL  WAR  AND  CHIEF  JUSTICE  CHASE 

1861-1866 

Before  the  beginning  of  the  December,  1860,  Term, 
Judge  Peter  V.  Daniel  died  on  May  30,  1860,  after  a 
service  on  the  Bench  of  nineteen  years.  The  South  was 
insistent  that  the  new  appointee  should  come  from  that 
section  of  the  country ;  for  the  Court  (exclusive  of  the 
Chief  Justice)  was  evenly  divided  —  four  from  the 
North  and  four  from  the  South.  Among  those  urged 
for  the  position  were  William  L.  Yancey  of  Alabama, 
and  Alexander  H.  Handy  and  Samuel  S.  Boyd  of 
Mississippi;^  but  the  strongest  and  ablest  candidate 
suggested  was  William  J.  Robertson,  Judge  of  the 
Court  of  Appeals  of  Virginia:  "The  appointment  of  a 
successor  to  Judge  Daniel  is  of  very  little  less  impor- 
tance to  the  South  than  the  election  of  the  next  Presi- 
dent," wrote  one  of  Robertson's  supporters;  and 
another  wrote :  "The  Court  is  the  last  line  of  defense 
which,  it  seems,  is  now  left  us."  *    On  the  other  hand, 

1  FranMin  Pierce  Papers  M88,  see  letter  of  G.  M.  Davis,  Aug.  8, 1860,  and  S.  S. 
Boyd,  Aug.  18, 1860;  WaekinifUm  Star,  Dec,  17,  ISeO, 

*  Correspondence  of  Robert  M.  T,  Hunter,  in  Amer.  Hist,  Ass,  Rep,  (1916),  II. 
Franklin  Minor  wrote  June  5, 1860 :  "There  may  be  no  danger  of  a  wrong  appoint- 
ment, but  still  I  am  filled  with  solicitude  by  a  rumor  which  I  have  heard,  that  James 
Lyons  is  the  favorite  of  Mr.  Buchanan.  .  .  .  Our  friends  all  believe  William  J. 
Robertson  of  the  Court  of  Appeals  is  the  very  man  for  the  place.  True  as  steel 
and  firm  as  a  rock,  the  South  may  rely  on  him  with  the  surest  confidence.  He  is, 
moreover,  in  the  prime  of  life,  and  nuiy  live  to  serve  us  long,  even  until  the  stormy 
and  the  evil  day  may  come  as  it  surely  will  come,  if  we  cannot  break  our  bonds, 
which  I  fear  we  cannot  yet.  To  incorruptible  fidelity  and  unfiinching  firmness, 
Robertson  adds  vast  stores  of  legal  learning  which  will  make  him  a  great  Judge.  *' 
William  M.  Ambler  wrote,  June  11, 1860 :  "The  vacancy  on  the  Bench  of  the  Su- 
preme Court  has  caused  almost  every  man  of  sound  State-Rights  principles  to  turn 
to  my  friend,  William  J.  Robertson.  .  .  .    He  is  so  pnre  morally  and  intellectually. 


THE  CIVIL  WAR  AND  CHASE  81 

the  Republicans,  regarding  the  Court  with  suspicion, 
were  equally  insistent  that  no  further  representatives  of 
slavery  interests  should  be  appointed;  and  Charles 
Sumner  wrote  at  this  time  (referring  to  rumors  as  to 
Taney's  proposed  resignation):  "I  know  no  man  at 
this  time  who  is  fit  for  the  oflSce  of  Chief  Justice.  The 
man  to  fill  it  must  appear  before  he  is  named,  must 
be  a  messenger,  or  vox  clamantis^  as  Marshall  was, 
and  as  Taney  was  not.  The  drowning  honour  of  that 
Court  is  under  the  water ;  it  must  be  plucked  up  by  the 
locks.  ...  If  the  next  Chief  does  not  lift  the  depart- 
ment up,  it  will  go  to  the  bottom.''  ^  Prominent  Re- 
pubUcan  organs  presented  the  more  radical,  anti- 
slavery  attitude  towards  the  Court  in  the  following 
partisan  attacks.^  The  New  York  Tribune  contended 
that  the  Court  was  the  instrument  of  the  slave  power, 
which,  *' knowing  that  it  would  ultimately  find  no 
repose  in  the  Legislative  and  Executive  branches  of 
the  Government,  has  long  had  its  eye  upon  the  Supreme 
Court  as  its  final  hiding  place  from  the  avenging  Spirit 
of  Freedom.  .  .  .  When  Marshall  died,  Benjamin  F. 
Butler  should  have  received  the  appointment.  But 
it  was  given  as  a  compensation  to  a  politician  who  had 
not  scrupled  to  perform  a  high-handed  act  at  the  dicta- 
tion of  the  Executive.  From  that  hour,  the  Court  lost 
caste  with  the  country.  Calhoun  fixed  his  eagle  eye 
upon  it,  and  resolved  to  make  it  the  subservient  hack 
of  the  negro  propaganda.  .  .  .  Two  new  seats  were 
created  under  Jackson.  Van  Buren  filled  them  with 
Catron  and  McKinley,  both  extreme  slaveholders  — 
the   former  a  respectable  jurist,  the  latter  a  grovelling 

and  far  abler  than  (lugfa  as  he  stands)  he  b  yet  known  to  be."  See  also  letter  of 
John  Randolph  Tucker,  June  IS,  1860,  as  to  Z.  Collins  Lee  as  a  candidate. 

^  Sumner,  III,  836,  letter  of  June  26, 1860. 

>  New  York  Tribune,  March  26,  1850 ;  New  York  Courier,  Jan.  22, 1861 ;  see  also 
PkUaddphia  North  American,  March  15, 1850,  Jan.  21, 1860. 


82  THE  SUPREME  COURT 

partisan.  And  now  the  Court  consisted  of  five  slave- 
holders and  four  non-slaveholders  with  the  unscrupu- 
lous Taney  at  its  head.  And  thus  it  remains  to  this 
day.  .  .  .  This  Court,  as  now  arranged,  is  scandal- 
ously sectional,  grossly  partial,  a  mockery  of  the  Con- 
stitution, a  serf  of  the  slave  power,  and  a  disgrace  to  the 
coimtry.  A  truly  National  Administration  will  not  fail 
to  reform  it  so  as  to  regain  for  it  the  confidence  of  the 
people,  by  adapting  it  to  the  ends  for  which  it  was 
created.'*  The  New  York  Courier  stated  that:  "The 
attention  of  all  those  of  our  people  who  are  solicitous 
to  hand  down  to  posterity  the  inheritance  of  freedom 
we  received  from  our  forefathers  should  be  drawn  to 
the  action  of  the  Supreme  Court.  Sitting  away  from 
popular  notice  in  a  secluded  nook  of  the  Capitol,  we 
should  see  that  they  are  not  stealthily  burrowing  under 
the  foundations  of  the  Temple  of  Liberty.  A  decided 
majority  of  them  are  the  appointees  of  the  party  that 
five  sixths  of  the  American  people  decided  against  at 
the  last  election;  and  there  are  no  more  inveterate 
sticklers  for  the  predominance  of  that  party  in  the  whole 
land.'*  It  pointed  out  that  three  cases  involving 
slavery  were  likely  to  be  argued  at  the  Term  beginning 
in  December,  1860,  —  one,  an  appeal  from  the  Territo- 
rial Court  of  Kansas,  which  might  require  a  decision  as 
to  the  right  of  the  people  of  the  Territory  to  exclude 
slavery  therefrom ;  the  second,  involving  the  duty  of  the 
Governor  of  Ohio  to  honor  a  requisition  from  the  Gov- 
ernor of  Kentucky  for  a  fugitive  who  had  violated  the 
slavery  laws  of  the  latter  State ;  the  third,  the  famous 
Lemmon  Case^  an  appeal  from  the  New  York  Court  of 
Appeals  involving  the  status  of  a  slave  brought  into 
that  State.^    This  Republican  paper,  now  citing  and 

1  The  SUOeB  and  Union,  Jan.  29»  1861,  said :  "Thit  House  accepted  yesterday  the 
Senate  amendment  to  the  bill  admitting  Kansas  into  the  Union.    Thus  the  ulti- 


THE  CIVIL  WAR  AND  CHASE  83 

adopting  views  urged  in  early  days  by  Democrats  like 
John  Taylor  of  Caroline,  Jefferson  and  Calhoun  as  to 
the  dangers  of  the  exercise  of  its  power  by  the  Court, 
contended  that  it  had  no  authority  to  determine  political 
questions,  and  spoke  of  the  **  delusion  abroad  as  to  the 
power  and  authority  of  this  Court,  that,  if  continued, 
may  become  fatal.  It  is  clear  that  in  all  political 
questions  (and  the  whole  subject  of  slavery  outside  of  a 
State  is  such)  the  decision  of  the  people  as  to  what  the 
Constitution  means  is  above  the  decision  of  the  Su- 
preme Court,  and  so  the  Supreme  Court  ought  to 
determine,  if  it  be  desirous  to  respect  the  Constitution 
and  our  whole  system  of  government,  rather  than  the 
demands  of  party  and  its  own  esprit  de  corps. " 

It  was  with  such  fundamental  misconceptions  prev- 
alent at  the  North  that  the  Court  convened  on  De- 
cember 3,  1860,  for  the  Term  which  was  to  end  in  war 
and  in  the  disappearance  of  the  slavery  issue  from  its 
docket.^  Its  first  session  was  held  in  a  new  Court- 
room; and  no  longer  could  its  surroundings  be  de- 
scribed as  they  had  been  by  a  newspaper  correspondent 
the  previous  year:  "You  walk  along  a  narrow  passage 
lighted  with  a  dim  lamp.  You  enter,  and,  crowding 
between  two  walls  of  old  deal  boxes,  see  a  distant  glass 
door,  a  general  gloom.  .  .  .  Descending  two  or 
three  steps,  you  are  ushered  into  a  queer  room  of  small 
dimensions  and  shaped  overhead  like  a  quarter  section 
of  a  pumpkin  shell,  the  upper  and  broader  rim  crown- 
ing three  windows,  and  the  lower  and  narrower  com- 

mate  decision  of  the  Supreme  Court  will  be  had  upon  the  question  of  the  right  of  a 
Territorial  Legislature  to  abolish  slavery." 

As  to  the  early  stages  of  the  Lemmon  Case,  see  especially  WaskingUm  Union, 
Jan.  1, 1858;  Law  Reporter  (1860),  XXIII. 

^  New  York  Tribune,  Dec.  4, 1860 :  "The  Supreme  Court  met  in  their  new  cham- 
ber at  noon.  Chief  Justice  Taney  and  all  the  Associate  Justices  were  present  except 
Judge  Wayne.  The  Court  shortly  adjourned,  and  the  Judges  proceeded  to  the 
White  House  personally,  and  paid  their  respects  to  the  President,  and  afterwards 
left  their  cards  for  the  Vice-President. " 


84  THE  SUPREME  COURT 

ing  down  garret-like  to  the  floor — the  windows  being 
of  ground  glass,  the  light  trickling  through  them.  •  •  . 
We  would  not  speak  disrespectfully  of  the  Supreme 
Court.  We  recently  entered  its  sacred  precincts  in 
company  with  an  irreverent  Western  lawyer.  After 
gazing  around  a  moment,  he  exclaimed :  *  I  don't  won- 
der at  that  decision  in  the  Dred  Scott  Case.  Why! 
What  a  potato  hole  of  a  place,  this !  The  old  men  ought 
to  be  got  up  above  groimd  where  they  can  breathe  fresh 
air  and  see  real  daylight  once  in  a  while  V"^  The  proj- 
ect for  the  provision  of  more  commodious  quarters  for 
the  Court  had  been  long  under  consideration ;  *  and 
finally  in  1860,  when  the  new  wings  were  added  to  the 
Capitol  for  the  Senate  and  the  House,  Congress  appro- 
priated $25,000  for  the  alteration  and  finishing  of  the 
former  Senate  Chamber  for  use  as  a  Court-room,  with 
twelve  other  rooms  for  the  use  of  the  Court,  its  oflScers 
and  records.* 

During  this  Term  beginning  in  December,  1860,  the 
uncertain  political  conditions  throughout  the  country 
and  the  approach  of  war  cast  a  gloom  over  the  session. 

1  New  York  Tribune,  March  16, 1859. 

'  In  1850,  in  a  report  on  the  extension  of  the  Capitol  by  Robert  Mills,  architect. 
May  1,  it  was  proposed  that  the  Senate  should  occupy  a  new  Chamber  in  a  new  wing 
and  that  "the  Court  should  be  comfortably  and  elegantly  accommodated  in  the 
present  Senate  Chamber."  It  was  stated  that  the  members  of  the  Court  had 
suffered  much  from  the  inconvenience  of  its  Court-room,  and  from  its  location, 
which  had  proved  injurious  to  health.  "The  deaths  of  some  of  our  most  talented 
jurists  have  been  attributed  to  this  location  of  the  Court-room ;  and  it  would  be 
but  conmion  justice  in  Congress  to  provide  better  accommodation  for  its  sittings. " 
See  also  36th  Cong.,  U  Sees.,  1579,  March  2, 1859 ;  ilnd.,  2829,  June  11. 1860. 

Gideon  Welles  in  his  diary,  March  5,  1863,  said :  **I  subsequently  went  into  the 
Senate  Chamber,  a  much  larger  but  less  pleasant  room  than  the  old  one,  which  I 
first  visited  in  the  last  days  of  the  second  Adams.  If  the  present  room  is  larger, 
the  Senators  seemed  smaller.  My  first  impressions  were  doubtless  more  reverential 
than  those  of  later  times."     The  Diary  of  Gideon  Welles  (1911),  1, 244. 

'  Act  of  June  25, 1860 ;  by  the  Act  of  April  7, 1866,  $6500  was  appropriated  to  fit 
up  rooms  in  the  basement  under  the  new  Supreme  Court-room  for  a  consultation 
room  for  the  Court.  In  a  report  by  the  United  States  Art  Commission,  Feb.  22, 
1860,  it  was  proposed  that  the  new  Court-room  "may  appropriately  be  decorated 
with  subjects  relating  to  the  judicial  history  of  the  country.'*  Fortunately,  this 
proposal  was  never  carried  out.    Documentary  History  of  the  CapUol  (1904),  746. 


THE  CIVIL  WAR  AND  CHASE  85 

Frequent  references  to  the  situation  were  made  by 
counsel;  and  a  striking  instance  of  their  forebodings 
occurred  in  an  argument  on  December  23,  1860,  by  an 
eminent  lawyer  from  Texas,  George  W.  Paschal,  whose 
sentiments  as  reported  in  the  press  *^  produced  a  pro- 
f oimd  sensation  and  brought  many  of  the  venerable  bar- 
risters to  their  feet  to  congratulate  the  Texan  upon  his 
patriotic  sentiments '*,  when  he  concluded  as  follows:^ 

We  stand  upon  the  brink  of  another  revolution.  .  .  .  The 
probable  indication  is  that,  before  the  mandate  of  this  Court 
goes  down,  Texans  may  have  decreed,  so  far  as  in  them  lies, 
that  this  Court  has  no  longer  jurisdiction  to  enforce  the  Con- 
stitution and  the  laws  under  which  the  cause  was  tried; 
that  the  Judge  and  counsel  who  tried  it  and  the  Germans 
who  have  been  naturalized  are  no  longer  bound  by  the  oaths 
which  they  voluntarily  took  to  support  the  Constitution  of 
the  United  States,  but  that  all  have  fallen  under  a  revolution 
said  to  be  necessary  to  sever  the  ties  which  bind  us  to  the 
Union,  which  Texans  voluntarily  joined  and  which  they  now 
threaten  to  leave.  ...  I  own  that  I  have  argued  the  case 
under  the  deep  melancholy  which  such  events  naturally  im- 
pose. .  .  .  Heaven  grant  that  I  may  be  wrong  in  my  appre- 
hensions and  may  Texas  be  long  preserved  as  a  member  of 
the  Union  in  which  she  has  had  a  colossal  growth !  Already, 
she  has  many  monuments  which  chronicle  bloody  dramas  in 
contending  revolutions,  and  may  we  find  protection  for  every 
right  which  the  Union  was  intended  to  afford !  While  we 
have  an  ultimate  appeal  here,  I  should  have  no  fears. 

President  Buchanan,  having  decided  to  fill  the  va- 
cancy on  the  Bench  caused  by  the  death  of  Judge  Daniel, 

1  National  InieUigeneer,  Dec.  29, 1860 ;  Chandler  v.  Von  Boeder,  24  How.  224,  de- 
cided Jan.  21, 1861.  President  Buchanan,  Dec.  15, 1860,  issued  a  proclamation  for 
a  day  of  fasting  and  prayer  on  Jan.  4,  1861,  in  which  he  stated :  "Hope  seems  to 
have  deserted  the  minds  of  men"  and  that  "God*s  arm  alone  can  save  us  from  the 
awful  effects  of  our  own  crimes  and  follies!'*  Referring  to  this  proclamation, 
the  New  York  Evening  Poet,  Dec.  17, 1860,  said  that  Reverdy  Johnson  made  "some 
appropriate  remarks  in  the  Supreme  Court,  in  which  that  distinguished  advocate 
prays  that  Heaven  may  silence  the  'whinings  of  imbecility  now  discouraging  and 
sickening  the  honest  public  heart.*  Mr.  Johnson  is  not,  it  may  be  remarked,  a 
very  ardent  admirer  of  the  President's." 


86  THE  SUPREME  COURT 

and  having  considered  the  appointment  of  Caleb  Cash- 
ing of  Massachusetts,  finally,  on  February  5,  1861, 
selected  for  the  position  Jeremiah  S.  Black  of  Pennsyl- 
vania.* Black  was  fifty-one  years  of  age;  he  had 
served  for  six  years  as  Judge  and  Chief  Justice  of  the 
Pennsylvania  Supreme  Court,  Attorney-General  of  the 
United  States  from  1857  to  1860,  and  Secretary  of 
State  since  December  17,  1860.  Though  a  man  of  hot 
temper,  his  legal  qualifications  were  eminent ;  and  had 
the  nomination  been  made  a  few  months  earlier,  as  had 
been  expected,  it  would  probably  have  been  confirmed. 
But  now,  owing  to  the  vacancies  in  the  Senate  due 
to  resignation  of  Senators  from  seceding  States,  and 
further  owing  to  the  bitter  opposition  of  Stephen  A. 
Douglas  and  his  followers,  confirmation  was  doubtful. 
The  RepubUcans,  moreover,  were  insistent  that,  as  the 
Democrats  had  turned  down  Crittenden  and  Badger 
whose  appointments  had  been  made  in  the  closing  days 
of  Whig  Administrations,  they  should  now  take  their 
own  medicine  and  leave  the  place  to  be  filled  by  Presi- 
dent Lincoln.  The  anti-slavery  press  was  savage  in  its 
criticism  of  Black.  ^^In  all  the  extensive  range  of  his 
most  unhappy  selections  for  office,  Mr.  Buchanan  has 
never  hit  upon  a  single  nomination  more  eminently 
unfit  to  be  made,'*  said  the  New  York  Tribune;  and  it 
alleged  that  Black  had  neither  the  judicial  qualities, 
the  vigorous  intellect  nor  the  calm  or  dignified  charac- 
ter required  for  the  position,  and  that  the  nomination 
was  ^'a  flight  of  insolence  so  extraordinary  as  to  partake 
of  some  of  the  most  captivating  traits  of  the  imagina- 
tion ! "  The  Senate,  by  a  vote  of  twenty-five  to  twenty- 
six,  rejected  the  nomination  on  February  21 ;  and  while 
at  the  very  last  moment  Buchanan  considered  appoint- 

1  Philaddphia  Prest,  Jan.  17,  24,  Feb.  5,  6,  28, 1861 ;  New  York  Tribune,  Jan.  29. 
Feb.  7,  20.  1861. 


THE  CIVIL  WAR  AND  CHASE  87 

ing  either  John  M.  Reed  of  Pennsylvania  or  Joseph 
Holt  of  Kentucky,  he  finally  decided  to  take  no  further 
action.^ 

As  soon  as  President  Lincoln  was  inaugurated,  it  was 
rumored  that  he  intended  to  appoint  the  veteran  states- 
man, John  J.  Crittenden  of  Kentucky,  and  this  choice 
was  hailed  as  highly  felicitous.  Not  only  was  Critten- 
den a  great  lawyer,  but  he  had  been  recently  one  of  the 
most  active  supporters  of  an  attempt  to  avert  civil 
war  by  means  of  the  famous  Crittenden  Compromise, 
in  January,  1861.  "  His  recognition  by  the  Administra- 
tion would  be  received  with  joy  all  through  the  Border 
States,**  said  one  conservative  Republican  paper.  "As 
a  stroke  of  policy,  the  appointment  of  Mr.  Crittenden 
at  this  time  will  be  most  fortunate  for  the  future  peace 
of  the  country,"  said  another,  "as  it  could  hardly  fail 
to  disarm  the  disunionists  in  the  Virginia  Convention 
instantly,  so  far  as  stripping  them  of  power  to  work 
future  mischief  in  the  Border  States  is  concerned.  It 
would  be  a  practical,  tangible  explanation  of  the  pur- 
pose of  the  new  Administration  not  to  aggress  the 
South,  which  every  Southern  man  would  instantly 
comprehend,  despite  the  intrigues  of  the  disunionists 
longer  to  deceive  them  on  that  really  now  most  im- 
portant point."  *    Opposition  to  Crittenden,  however, 

'  ExeeuUice  Journal  cf  the  Senate,  XI;  PkUaddphia  Preset  March  2;  New  York 
Timest  Feb.  20, 1861.  One  cause  of  Black's  failure  was  the  opinion  which  he  had 
given  as  Attorney-General,  Nov.  20, 1860,  as  to  the  lack  of  power  in  the  President 
to  prevent  a  State  from  seceding;  see  editorial  in  New  York  Eeening  Poet,  Dec.  10, 
1860. 

^Pkiladdpkia  Press,  March  8,  11,  18,  16,  April  5,  0,  1861;  Washington  Star, 
March  6,  7,  8,  1861 ;  New  York  Times,  Feb.  86,  March  7,  1861,  said :  "Nothing 
would  so  reassure  conservative  Southern  men  as  the  appointment  of  Crittenden. " 
The  States  and  Union,  March  7,  said  the  appointment  "would  bring  considerable 
strength  to  the  new  Administration, "  and  on  March  4,  it  said  that  the  radicals  were 
making  "a  vindictive  eflPort  to  rob  the  Administration  of  the  honor  of  so  wise  an 
appointment"  and  that  Senator  TVumbull  was  Crittenden's  most  active  antago- 
nist." E.  M.  Stanton  wrote  to  Buchanan,  March  10, 1861,  that  on  the  day  after  the 
confirmation  of  the  Cabinet,  "  Mr.  Seward  sent  for  me  and  requested  me  to  draw 
Up  a  nomination  for  Mr.  Crittenden  for  Judge  of  the  United  States  Court.    I  did 


88  THE  SUPREME  COURT 

developed  among  the  more  radical,  anti-slavery  Re- 
publicans ;  and  the  names  of  Thomas  Ruffin  of  North 
Carolina,  Joseph  Holt  of  Kentucky  and  George  E. 
Badger  of  North  Carolina  began  to  be  mentioned. 

Meanwhile,  the  last  day  of  the  Court's  session  on  the 
momentous  eve  of  war  occurred  on  March  14,  1861, 
ten  days  after  Lincoln's  inauguration.  "The  Court 
adjourns  today.  I  am  now  writing  in  the  Supreme 
Court-room.  If  the  Court  ever  reassembles,  there  will 
be  considerable  change  in  its  organization,"  wrote 
Edwin  M.  Stanton  to  Buchanan.  "There  has  been  no 
further  action  in  respect  to  the  Supreme  Judgeship.  It 
is  generally  understood  that  Crittenden  will  not  be 
nominated.  Judge  Campbell  has  reconsidered  his  resig- 
nation and  will  not  resign  immediately.  Judge  Grier 
went  home  sick,  two  days  ago.  Judge  McLean  is 
reported  to  be  quite  ill.  Lincoln  will  probably  (if  his 
Administration  continues  four  years)  make  a  change 
that  will  aflfect  the  constitutional  doctrines  of  the  Court. 
.  .  .  The  Supreme  Court  has  just  decided  .  •  .  that 
the  Federal  Government  has  no  power  to  coerce  the 
Governor  of  a  State  to  return  a  fugitive  from  justice, 
although  it  is  his  duty  to  comply  with  the  demand." 
The  decision  referred  to  by  Stanton  as  rendered  on 
this  last  day  of  the  Term  was  Ex  parte  Kentucky  v. 
Dennisarty  24  How.  66,  in  which  the  State  of  Kentucky 
had  brought  a  petition  for  mandamus  in  the  United 
States  Supreme  Court  to  compel  the  Governor  of  the 
State  of  Ohio  to  honor  a  requisition  of  the  Governor  of 
Kentucky  for  the  surrender  of  a  violator  of  a  State  law 
relative  to  slaves.    The  Court  held  that  though  the 

80  and  gave  it  to  him.  My  understanding  was  that  the  nomination  would  be  im- 
mediately sent  in.  But  it  has  not  been  sent,  and  the  general  understanding  is  that 
it  will  not  be.  The  rumor  is  that  the  red  blacks  oppose  it,  and  also  many  of  the 
Democrats,  and  that  Mr.  Holt  will  be  nominated.  He  appears  now  to  be  the  chief 
favorite  of  the  Republicans.  *'    Works  qf  James  Buckanatit  XI. 


THE   CIVIL  WAR  AND  CHASE  89 

Constitution  provided  that  "it  shall  be  the  duty"  of 
the  Governor  of  a  State  to  deliver  up  fugitives  from 
justice,  these  words  were  merely  "declaratory  of  the 
moral  duty"  and  that  no  power  was  delegated  "  to  the 
Greneral  Government,  either  through  the  judicial  depart- 
ment or  any  other  department,  to  use  any  coercive 
means  to  compel  him."  ^  The  decision  wiU  strike 
most  people,  said  the  New  York  Evening  Posty  "as 
much  like  that  message  of  Mr.  Buchanan's,  of  which 
Mr.  Seward  gave  so  just  and  pithy  a  rendering :  *  that 
a  State  has  no  right  to  secede,  but  no  one  has  a  right  to 
prevent  it ;  and  that  the  laws  of  the  United  States  must 
be  enforced,  but  there  is  no  authority  to  enforce  them.' 
Justice  Taney  says,  in  effect,  that  the  Governor  of  Ohio 
ought  to  give  up  the  fugitive,  but  if  he  will  not,  there  is 
no  authority  to  make  him  do  so.  The  real  point  in 
question,  however,  is  whether  a  fugitive  demanded  by 
one  State  shall  be  given  up  by  another,  when  the  oflFence 
is  no  offence  against  the  laws  of  the  State  asked  to  sur- 
render him,  or  against  the  law  of  nations."  Though 
the  decision  gave  considerable  dissatisfaction  to  the 
slave  States,  it  was  rendered  at  a  date  too  close  to  the 
verge  of  war  to  have  any  effect  on  the  development  of 
the  slavery  issue. 

Two  other  decisions  rendered  at  this  time  were  impor- 
tant as  showing  that  the  Court  was  still  to  be  depended 
upon  to  sustain  the  supremacy  of  the  jurisdiction  of  the 
National  Government,  which  the  Chief  Justice  had  so 
staunchly  upheld  in  the  Booth  Case^  two  years  before. 
In  Freeman  v.  Howe^  24  How.  450,  property  attached 
by  a  United  States  marshal  in  a  suit  in  a  Federal  Court 
was  seized  on  replevin  by  a  State  sheriff  on  process 
issued  from  a  State  Court  in  a  suit  by  bondholders. 

1  Naiianal  InMigencer,  Dec.  18,  1860;  New  York  Eoming  Paai,  March  14,  15, 
1861 ;  see  also  National  RepubUean  (Wash.).  Maich  15, 16, 1861. 


90  THE  SUPREME  COURT 

The  Court,  through  Judge  Nelson,  said :  *'No  Govern- 
ment could  maintain  the  administration  or  execution  of 
its  laws,  civil  or  criminal,  if  the  jurisdiction  of  its  ju- 
dicial tribunals  were  subject  to  the  determination  of 
another.  •  .  .  It  belongs  to  the  Federal  Courts  to 
determine  the  question  of  their  own  jurisdiction,  the 
ultimate  arbiter,  the  supreme  judicial  tribunal  of  the 
Nation.*'*  In  Almy  v.  California,  i4i  How.  169,  in- 
volving the  validity  of  a  State  stamp  tax  on  bills  of 
lading  of  all  gold  transported  from  within  to  without 
the  State,  and  argued  by  Montgomery  Blair  against 
Judah  P.  Benjamin,  the  Chief  Justice  had  occasion  to 
render  an  opinion,  rejecting  his  own  unsuccessful  argu- 
ment as  counsel  in  Brown  v.  Maryland  in  1827,  and 
holding  that  such  a  tax  was  a  tax  on  exports  within  the 
prohibition  of  the  Constitution.* 

One  month  from  the  date  of  the  adjournment  of  the 
Court,  the  advent  of  war  by  the  attack  on  Fort  Sumter 
on  April  12  seemed  to  put  an  end  to  all  consideration  of 
judicial  questions  or  of  judicial  appointments  Never- 
theless, within  six  weeks  after  the  opening  gun  was  fired, 
the  status  of  the  Judiciary  as  the  defender  of  the  rights 
of  the  citizen,  in  war  as  well  as  in  peace,  became  an 
active  issue,  when  Chief  Justice  Taney,  sitting  in  the 
United  States  Circuit  Court,  was  brought  into  direct 
conflict  with  the  President,  by  his  famous  decision  in 
Ex  parte  Merryman.  In  this  case,  a  prominent  citizen 
of  Baltimore  who  had  been  arrested  by  the  military  on  a 
charge  of  aiding  the  enemy  and  who  had  been  impris- 
oned in  Fort  McHenry,  had  obtained  a  writ  of  habeas 

1  In  Buok  V.  Colbath,  8  Wall.  884,  the  Court  said  that  the  Fre&man  ▼.  Hov>e  de- 
dnon  "  took  the  profewion  generally  by  surprise,  overruling  as  it  did  the  unanimous 
opinion  of  the  Supreme  Court  of  Massachusetts  ...  as  well  as  the  opinion  of 
Chancellor  Kent. " 

>  See  as  to  this  case.  Woodruff  v.  Parham,  8  Wall.  128, 188;  Champion  v.  Ames, 
188  U.  S.  821.  849. 


THE  CIVIL  WAR  AND  CHASE  91 

corpus  from  the  Chief  Justice.  The  officer  in  charge  of 
the  prisoner  having  declined  to  obey  the  writ  on  the 
ground  that  he  was  authorized  by  the  President  to  sus- 
pend the  writ  of  habeas  corpus  for  the  public  safety, 
Taney  at  once  issued  an  attachment  for  contempt. 
Its  service  being  prevented  by  the  mUitary ,  Taney  pro- 
ceeded  to  file  an  opinion  holding  the  suspension  of  the 
writ  by  the  President  to  be  in  violation  of  the  Constitu- 
tion, and  ordered  the  Clerk  of  the  Court  to  transmit 
a  copy  of  the  opinion  to  the  President.*  The  case 
thus  involving  the  powers  of  the  Executive  with  respect 
to  the  liberty  of  the  citizen  excited  intense  interest 
throughout  the  country.*  Once  more,  as  in  1867, 
criticism  and  denunciation  of  the  harshest  kind  were 
leveled  at  the  aged  Chief  Justice ;  and  many  Republican 
papers  even  questioned  his  loyalty  to  the  Union.  **The 
Chief  Justice  takes  sides  with  traitors,  throwing  around 
them  the  sheltering  protection  of  the  ermine,"  said  the 
New  York  Tribune.  "When  treason  stalks  abroad  in 
arms,  let  decrepit  Judges  give  place  to  men  capable  of 
detecting  and  crushing  it" ;  and  it  stated  that  Taney's 
decision  tended  "to  bring  the  ermine  into  contempt 
with  the  great  body  of  loyal  citizens.  The  appropriate 
sphere  of  this  writ  is  the  Courts.  It  is  out  of  place  in 
the  camp.  Originally  intended  to  secure  the  liberty  of 
loyal  men,  it  would  be  a  gross  perversion  of  its  powers 

*  tyltx  states  in  his  Memoir  of  Taney  that  the  Chief  Justice,  as  he  left  the  house  of 
his  SOD*  remariEed  that  it  was  likely  that  he  should  be  imprisoned  in  Fort  McHenry 
before  night,  but  that  he  was  going  to  Court  to  do  his  duty.  About  the  same  time. 
Judge  Treat  of  the  United  States  District  Court  in  St.  Louis  issued  a  writ  of  habeas 
corpus  in  the  case  of  Capt.  Emmet  Biacdonald,  who  had  been  arrested  and  impris- 
oned by  Gen.  Harvey,  on  charges  of  treason,  and  after  lengthy  arguments  an  order 
for  Blaodonald's  discharge  was  issued  and  finally  complied  with  by  the  Army :  see 
especially,  Minouri  Democrat,  Biay  16,  28,  84,  27,  28,  29,  June  1,  8,  4,  7, 10, 1861 
NatUnud  Intettigeneer,  Biay  29, 1861. 

'  New  York  Timse,  May  29,  80, 1861 ;  New  York  Trilnme,  Biay  29,  80,  81, 1861 
PkOadd'pkia  Press,  June  5,  6, 1861 ;  New  York  World,  May  29,  June  5, 1861 ;  Mis- 
souri Democrat,  June  8,  1861,  editorial  on  "Military  Despotism  as  a  Bug  Bear' 
New  York  Eeening  Post,  May  29»  June  4, 1861. 


92  THE  SUPREME  COURT 

to  employ  it  as  the  protecting  shield  of  rebels  agamst 
a  constitutional  government.  .  .  .  No  Judge  whose 
heart  was  loyal  to  the  Constitution  would  have  given 
such  aid  and  comfort  to  public  enemies.  .  .  •  Let 
us  not  be  afraid  of  military  despotism.  ...  Of  all 
the  tyrannies  that  affict  mankind,  that  of  the  Judiciary 
is  the  most  insidious,  the  most  intolerable,  the  most 
dangerous.''  The  New  York  Times  said  that  no  man 
knew  better  than  Taney  that  he  was  perverting  the 
uses  of  the  writ  and  prostituting  its  purposes.  "Too 
feeble  to  wield  the  sword  against  the  Constitution,  too 
old  and  palsied  and  weak  to  march  in  the  ranks  of  re- 
bellion and  fight  against  the  Union,  he  uses  the  powers 
of  his  office  to  serve  the  cause  of  the  traitors."  The 
New  York  Evening  Post  said  that  Taney  was  using  "  his 
authority  and  position  to  the  advantage  of  those  who 
are  armed  against  the  Union,*'  and  "to  serve  treason, 
and  embarrass  and  injure  the  Government."  The 
Philadelphia  Press  said  that  Taney's  opinion  bore  every 
evidence  of  having  been  prepared  with  intention  to 
embarrass  the  President;  and  that  his  sympathies 
were  evidently  neither  with  the  Union  nor  with  the 
President  in  his  efforts  to  save  the  Union.  "That 
which  curbs  tyranny  should  speed  patriotism  and  crush 
treason.  ...  If  his  action  is  an  indication  of  his 
future  course,  treason  will  find  a  place  of  refuge,  and  its 
abettors  encouragement  and  sympathy,  in  the  Supreme 
Court."  The  Missouri  Democrat  spK)ke  of  the  "med- 
dling and  traitorous  efforts  to  thwart  the  efficiency 
of  the  Government  in  its  hour  of  peril.  ...  If  the 
Government  will  follow  up  the  suspension  of  the  writ 
of  habeas  corpus  with  the  dispension  of  .  .  .  Taney 
it  will  be  a  good  riddance  for  the  country." 

Derogatory  views  of  this  kind  were  not  by  any  means 
universal ;  and  many  staunch  Republican  organs  com- 


THE  CIVIL  WAR  AND  CHASE  9S 

mended  Taney's  action  in  behalf  of  personal  liberty.* 
"We  are  not  sorry  to  see  the  Judiciary  declare  its 
opinion,  or  even  enter  its  protest  against  acts  which  it 
believes  to  be  without  authority,*'  said  the  Boston 
Advertiser.  "If  in  any  point  the  limits  of  the  Con- 
stitution are  overstepped,  we  desire  that  the  excess 
should  not  be  overlooked,  but  that  it  should  be  entered 
upon  the  record,  to  stand  as  a  warning,  in  more  peace- 
ful times  yet  to  come,  that  here  is  an  act,  the  necessity 
of  which  was  the  justification,  and  which  is  not  to  be 
made  a  precedent  at  any  time  when  the  public  exi- 
gency is  less  pressing."  The  Cincinnati  Commercial, 
which  had  in  previous  years  bitterly  assailed  Taney, 
acknowledged  that  in  this  case  he  had  done  only  what 
the  law  required  of  him,  and  that  denunciations  were 
now  unjustified;  and  it  stated  that,  while  the  offense 
committed  by  Merryman  was  unquestionably  heinous, 
"it  does  appear  to  us  that  he  could  have  been  held 
and  punished  by  the  civil  power,  .  .  .  The  very  fact 
that  we  are  placed  in  circumstances  so  critical  as  to 
render  the  application  of  the  severest  remedies  some- 
times justifiable  should  guard  us  against  resorting  to 
military  rule.  .  .  .  Let  us  have  no  dictation  from  the 
Army,  so  long  as  we  can  have  justice  administered  from 
her  customary  seat."  The  Baltimore  American  took 
the  same  view  of  the  situation.  "The  plea  of  State- 
necessity  may  be  advanced  by  the  President  to  justify 
himself  for  so  high-handed  an  act  as  the  suspension  of 
the  writ ;  .  .  .  but  it  would  not  be  well  for  the  highest 
oflficer  of  the  Government  to  justify  a  plain  violation  of 
the  Constitution,  while  calling  out  troops  to  maintain 

1  Badon  Daily  Aditertiser,  May  80,  1861 ;  National  Intdligencer,  May  80,  June  4, 
8^  22,  1861 ;  CincinnaH  Commercial,  May  29,  June  8,  1861 ;  BaUimore  American, 
May  29,  June  4,  1861 ;  The  WaakingUm  Star,  May  29,  1861,  said  that  the  action 
(rf  Chief  Juatice  Taney  in  this  case  was  probably  in  accordance  with  the  strict  letter 
(rf  the  law  but  that  it  was  to  be  sincerely  regretted  that  he  had  refused  to  take  into 
consideration  the  revolutionary  state  of  the  country. 


d4  THE  SUPREME  COURT 

that  same  Constitution  inviolate.  ...  It  is  emi- 
nently proper  that  a  Government  which  is  fighting 
to  maintain  the  integrity  of  the  Constitution  should  in- 
terpose no  arbitrary  action  to  suspend  or  interfere  with 
rights  plainly  guaranteed  under  it,  if  it  would  have  the 
support  and  countenance  of  its  citizens." 

While  the  legal  controversy  which  raged  in  1861  over 
the  constitutional  right  of  the  President  to  suspend  the 
writ  of  habeas  corpus  has  never  been  settled  by  judicial 
decision  or  public  opinion,  the  right  and  the  duty  of 
the  Chief  Justice  to  issue  the  writ  and  to  consider  the 
legal  question  involved  is  now  universally  admitted.* 
And  history  has  recorded  as  its  verdict  that  (as  stated 
by  one  of  his  biographers)  "there  is  nothing  more 
sublime  in  the  acts  of  great  magistrates  that  give  dig- 
nity to  Governments  than  this  attempt  of  Chief  Justice 
Taney  to  uphold  the  supremacy  of  the  Constitution  and 
civil  authority  in  the  midst  of  arms" ;  and  (as  another 
wrote) :  "Taney's  action  in  this  case  was  worthy  of  the 
best  traditions  of  the  Anglo-Saxon  Judiciary.  There 
is  no  sublimer  picture  in  our  history  than  this  of  the 
aged  Chief  Justice,  the  fires  of  Civil  War  kindling  around 
him,  the  President  usurping  the  powers  of  Congress, 
and  Congress  itself  a  seething  furnace  of  sectional 
animosities,  serene  and  unafraid,  while  for  a  third  time 
in  his  career,  the  storm  of  partisan  fury  broke  over  his 
devoted  head,  interposing  the  shield  of  the  law  in  the 
defense  of  the  liberty  of  the  citizen."  • 

President  Lincoln,  however,  steadfastly  adhered  to 

^  See  among  maDy  publications  published  in  1801  and  1802  on  this  subject : 
The  PriviUge  cf  the  Writ  of  Habeas  Corpus,  by  Horace  Binney ;  article  by  Reverdy 
Johnson  in  the  Weekly  National  InteUigencer,  June  20,  1801 ;  Habeas  Corpus  and 
the  Law  cf  War  and  ConfiseaHon,  by  S.  S.  Nicholas ;  Renew  of  Binney  on  the  Habeas 
Corpus^  by  J.  C.  Bullitt ;  Habeas  Corpus  and  Martial  Law,  by  Joel  Parker;  and  see 
especially  Suspension  of  Habeas  Corpus  during  the  War  of  the  RAeUion,  by  Sydney 
G.  Fisher»  Pol,  Sci.  Quar.  (1888),  m. 

>  Roger  B.  Taney,  by  William  E.  Mikell,  in  Great  Ammoan  Lawyers  {1905),  TV, 
188;  Ty^,  420-482. 


THE  CIVIL  WAR  AND  CHASE  95 

the  theory  that  in  time  of  war  the  necessities  of  the 
emergency  were  supreme;  and  accordingly,  during 
the  two  years  following  the  Merryman  Case,  a  series  of 
steps  were  taken  by  the  President  and  by  the  Secretary 
of  War  in  instituting  censorship,  military  arrest  and 
military  trial,  violative  of  the  principles  laid  down  by 
Taney,  and  which,  while  possibly  justified  by  war  con- 
ditions, have  since  been  held  to  have  been  in  excess  of 
constitutional  authority.*  Lincoln's  theory  was  elo- 
quently set  forth  by  him  in  a  letter  in  1863  as  follows : 
"Thoroughly  imbued  with  a  reverence  for  the  guaran- 
teed rights  of  individuals,  I  was  slow  to  adopt  the  strong 
measures  which  by  degrees  I  have  been  forced  to  regard 
as  being  within  the  exceptions  of  the  Constitution  and 
as  indispensable  to  the  public  safety.  ...  I  con- 
cede that  the  class  of  arrests  complained  of  can  be 
constitutional  only  when  in  cases  of  rebellion  or  in- 
vasion the  public  safety  may  require  them ;  and  I  insist 
that  in  such  cases  they  are  constitutional  wherever  the 
public  safety  does  require  them,  as  well  in  places  in 
which  they  may  prevent  the  rebellion  extending  as  in 
those  where  it  may  already  be  prevailing."  •    This 

^  See  tlie  censorship  orders  of  July  8,  Oct.  22, 1861,  and  Feb.  25,  1862,  issued  by 
the  Secretary  of  War  and  the  Secretary  of  State:  the  Executive  Order  of  Feb.  14, 
1862,  by  the  Secretary  of  War  as  to  military  arrests ;  the  President's  Order  of  April 
27,  1861,  and  his  Proclamation  of  Sept.  24,  1862,  suspending  habeas  corpus;  the 
Suspension  of  Habeas  Corpus  Act  of  March  8, 1868.  Congress  by  the  Act  of  March 
8, 1868,  the  Act  oi  May  11, 1866,  and  the  Act  of  March  2, 1867,  attempted  to  con- 
firm and  validate  the  acts  of  President  Lincoln  and  Secretary  Stanton  and  of 
military  officers  acting  in  accordance  with  their  orders  in  making  military  arrests, 
etc  These  sUtutes  were  involved  in  Beard  v.  BurU,  95  U.  S.  484,  in  1877,  and 
hi  Bean  v.  Beckvriik,  98  U.  S.  266,  in  1878;  but  the  Court  did  not  pass  on  the 
question  of  their  constitutionality ;   see  especially  Sprin^fidd  RepuUieatit  Jan.  9, 

1879. 

'  CompUU  Works  cf  Abraham  Lincoln  (1905),  VIII,  letter  to  Erastus  Coming, 
June  12,  1868.  It  is  interesting  to  note  that  one  other  Court  had  the  courage  to 
deny  Lincoln's  theories.  The  Supreme  Court  of  Wisconsin,  the  very  tribunal  which 
had  so  long  defied  Chief  Justice  Taney*s  assertion  of  the  supremacy  of  the  National 
power  in  the  Booth  Case,  in  January,  1868,  rendered  an  opinion  in  In  re  Kemp,  16 
Wise.  859,  in  which  it  upheld  Taney's  views  in  the  Merryman  Case  as  ''unanswer- 
able", and  held  that  the  President  had  no  power  to  suspend  the  writ  of  habeas 
corpus ;  see  The  Story  of  a  Qreai  Court  (1912),  by  John  B.  Winslow. 


96  THE  SUPREME  COURT 

exaltation  of  the  Executive  over  the  law  greatly  de- 
pressed the  aged  Chief  Justice  throughout  the  remain- 
ing years  of  his  life ;  and  he  wrote,  in  1863,  that  he  saw 
no  ground  to  hope  that  the  Court  would  "ever  be  again 
restored  to  the  authority  and  rank  which  the  Constitu- 
tion intended  to  confer  upon  it.  The  supremacy  of  the 
military  power  over  the  civil  seems  to  be  established, 
and  the  public  mind  has  acquiesced  in  it  and  sanctioned 
it."  The  apprehension  so  expressed  as  to  the  trend  of 
events  was  unquestionably  shared  by  many  Senators 
and  Representatives  in  Congress,  even  in  the  President's 
own  party.  ^  Yet  such  is  the  sturdiness  of  the  American 
Judiciary  and  the  vitality  of  the  American  belief  in  and 
insistence  upon  the  rights  of  constitutional  liberty, 
that,  had  the  Chief  Justice  lived  but  four  years  after 
writing  his  note  of  pessimism,  he  would  have  seen  the 
doctrines  laid  down  by  him  in  the  Merryman  Case 
strongly  upheld.  For  in  Milligan^s  CasCy  the  Court 
composed  largely  of  Republicans,  unanimously  joined 
in  denouncing  as  highly  illegal  the  Executive  establish- 
ment of  military  tribunals  in  States  where  the  civil 
Courts  were  open.  Never  did  a  fearless  Judge  receive 
a  more  swift  or  more  complete  vindication. 

On  December  2,  1861,  when  the  Court  met  for  its 
annual  session,  there  were  three  vacancies ;  for  Judge 
Daniel's  successor  had  not  been  appointed.  Judge 
McLean  had  died  on  April  4,  1861,  and  Judge  Camp- 

^  For  a  summary  of  CoDgreasioiial  criticum  of  the  President,  see  Lincoln's  Des- 
poUtm,  by  Charles  Warren,  New  York  Times,  May  12,  1918.  See  also  The  Diary 
qf  Qideon  WdUs,  I,  Sept.  \5,  1863 :  "I  think  I  am  not  mistaken  in  my  impression 
that  Mr.  Chase  is  one  of  those  who  has  claimed  that  the  President  had  the  constitu- 
tional right  to  suspend  the  privilege  of  this  writ,  yet  he  was  today  sensitive  beyond 
all  others  in  regard  to  it  and  proposed  relying  on  the  Act  of  Congress  (of  March  S, 
1868)  instead  of  the  constitutional  Executive  prerogative.  He  feared  if  the  Presi- 
dent acted  on  Executive  authority  a  dvil  war  in  the  Free  States  would  be  inevitable ; 
fears  popular  tumult,  would  not  offend  Congress,  etc.  I  have  none  of  his  apprehen- 
sions, and  if  it  is  the  duty  oi  the  President,  would  not  permit  legislative  aggression, 
but  TTn^intAtn  the  prerogative  of  the  Executive." 


THE  CIVIL  WAR  AND  CHASE  97 

bell  had,  with  great  reluctance,  decided  that  his  duty 
impelled  him  to  follow  his  State  of  Alabama  out  of  the 
Union.  While  believing  in  secession  as  a  constitutional 
right,  Campbell  had  strongly  opposed  it  as  a  policy; 
and  his  efforts  through  the  winter  and  spring  of  1860- 
1861  to  avert  war  had  been  active  and  unremitting.* 
With  the  outbreak  of  war,  however,  he  felt  that  it 
was  his  duty  to  resign,  and  that  his  continuance  on 
the  Bench  would  lead  to  a  lack  of  confidence  by  the 
public  in  his  opinions.  Accordingly,  he  wrote  to  the 
Chief  Justice,  April  29,  1861 :  "Some  days  ago,  I  sent 
through  the  mail  to  the  President  a  notice  of  my  resig- 
nation. ...  In  taking  leave  of  the  Court,  I  should 
do  injustice  to  my  own  feeling,  if  I  were  not  to  express 
to  you  the  profound  impression  that  your  eminent 
qualities  as  a  magistrate  and  jurist  have  made  upon  me. 
I  shall  never  forget  the  uprightness,  fidelity,  learning, 
thought  and  labor  that  have  been  brought  by  you  to 
the  consideration  of  the  judgments  of  the  Court,  or  the 
urbanity,  gentleness,  kindness  and  tolerance  that  have 
distinguished  your  intercourse  with  the  members  of 
the  Court  and  Bar.  From  your  hands,  I  have  received 
all  that  I  could  have  desired,  and  in  leaving  the  Court,  I 
carry  with  me  feelings  of  mingled  reverence,  aflfection 
and  gratitude.  In  the  prayer  that  the  remainder  of 
your  days  may  be  happy  and  their  end  peace,  I  re- 
main your  friend."  *  The  loss  thus  sustained  by  the 
Bench  was  noted  by  the  National  Intelligencer^  which 
termed   Campbell   "a  learned   jurist  and  a  faithful 

^  Stanton  writing  to  Buchanan  in  May,  1861,  said  that  "the  New  York  Evening 
Pott  is  very  severe  on  Judge  Campbell,  and  very  unjustly  so,  for  the  Judge  has  been 
as  anxiously  and  patriotically  anxious  to  preserve  the  Grovemment  as  any  man  in  the 
United  States,  and  he  has  sacrificed  more  than  any  other  Southern  man,  rather  than 
yield  to  the  Secessionists. "  John  Ardribald  Campbell  (1920),  by  Hoiiy  G.  Connor. 
The  New  York  Tribune,  Nov.  27, 1860,  said :  "Every  Judge  on  the  Bench  is  for  the 
Union. "    See  also  The  States  and  Union,  Jan.  16, 26»  1861. 

*  Maryland  Hiel.  Mag.  (1010),  V. 

VOL.  ni  — 4 


98  THE  SUPREME  COURT 

Judge,  who  during  the  entire  period  of  his  official  ser- 
vice has  illustrated  the  qualities  which  must  adorn  the 
exalted  position  he  was  called  to  fill,  and  who,  in  his 
retirement,  will  carry  with  him  the  admiration  of  his 
countrymen." 

President  Lincoln  hesitated  at  first  to  fill  these 
vacancies  on  the  Bench.  His  characteristically  just 
attitude  towards  the  South  was  shown  in  his  first  Mes- 
sage to  Congress,  December  3,  1861,  in  which  he  said : 
"  Two  of  the  outgoing  Judges  resided  within  the  States 
now  overrun  by  revolt,  so  that  if  successors  were  ap- 
pointed in  the  same  localities,  they  could  not  now  serve 
upon  their  Circuits ;  and  many  of  the  most  competent 
men  there  would  not  take  the  personal  hazard  of  ac- 
cepting to  serve  even  here  upon  the  Supreme  Bench. 
I  have  been  unwilling  to  throw  all  the  appointments 
Northward,  thus  disabling  myself  from  doing  justice 
to  the  South  on  the  return  of  peace.*'  * 

The  gloomy  conditions  under  which  both  the  Court 
and  Congress  convened  at  this  December  Term  of 
1861  were  impressively  alluded  to  by  Attorney-General 
Bates,  December  3,  in  presenting  the  resolutions  of  the 
Bar  on  the  death  of  Judge  McLean : 

Since  the  first  organization  of  this  Court,  no  Term  has  yet 
been  held  under  circumstances  so  gloomy  and  sorrowful.  I 
look  up  to  that  honored  Bench  and  behold  vacant  seats. 
Even  this  august  tribunal,  the  co-equal  partner  in  the  gov- 
ernment of  a  great  Nation,  the  revered  dispenser  of  our 
country's  justice,  shares  with  us  in  feeling  the  common  sor- 
row, and  suffers  in  the  common  calamity.  It  is  shorn  of  its 
fair  proportions,  and  weakened  and  diminished  in  its  strength 
and  beauty,  by  the  present  loss  of  one  entire  third  of  its 
competent  members.    And  where  are  the  wise,  learned,  and 

^  Lincoln  pointed  out  at  the  same  time  that  the  whole  judicial  system  ought  to  be 
revised,  and  that  Wisconsin,  Minnesota,  Iowa,  Kansas,  Florida,  Texas,  Califorma 
and  Oregon  should  be  brought  within  some  judicial  Circuit,  and  provided  with 
Circuit  Courts. 


THE  CIVIL  WAR  AND  CHASE  99 

just  men  who  used  to  fill  those  seats?  Gone  from  this 
theatre  of  their  fame  and  usef uhiess,  while  all  of  us  remember 
them  with  respect  and  gratitude,  and  mourn  the  loss  of  their 
valuable  services.  Two  of  them  have  been  peacefully 
gathered  to  their  fathers,  and  have  left  their  fame  safe  and 
unchangeable  beyond  the  reach  of  malice,  and  secure  against 
accident,  embalmed  in  history,  and  narrowed  by  the  grave. 
And  one  of  them,  in  the  ripe  vigor  of  his  manhood,  and  in 
the  pride  of  a  noble  and  highly  cultivated  mind,  has  been 
swept  away  from  his  high  position  by  the  turbulent  waves  of 
faction  and  civil  war.  And  this  is  not  all.  Your  lawful 
jurisdiction  is  practically  restrained;  your  just  power  is 
diminished,  and  into  a  large  portion  of  our  country  your 
writ  does  not  run  and  your  beneficent  authority  to  adminis- 
ter justice  according  to  law  is,  for  the  present,  successfully 
denied  and  resisted.  I  look  abroad  over  the  country  and 
behold  a  ghastly  spectacle;  a  great  nation,  lately  united, 
prosperous*  and  happy  and  buoyant  with  hopes  of  future 
glory,  torn  into  warring  fragments ;  and  a  land  once  beauti- 
ful and  rich  in  the  flowers  and  fruits  of  peaceful  culture, 
stained  with  blood,  and  blackened  with  fire.  In  all  that 
wide  space  from  the  Potomac  to  the  Rio  Grande,  and  from 
the  Atlantic  to  the  Missouri,  the  still,  small  voice  of  legal 
justice  is  drowned  by  the  incessant  roll  of  the  drum,  and  the 
deafening  thunder  of  artillery.  To  that  extent,  your  just 
and  lawful  power  is  practically  annulled,  for  the  laws  are 
silent  amidst  arms.  .  .  .  Now,  indeed,  we  are  overshadowed 
with  a  dark  cloud,  broad  and  gloomy  as  a  nation's  pall ;  but 
thanks  be  to  God,  the  eye  of  faith  and  patriotism  can  discern 
the  bow  of  promise  set  in  that  cloud,  spanning  the  gloom 
with  its  bright  arch,  to  foreshow  the  coming  of  a  day  of  sim- 
shine  and  calm,  and  to  justify  our  hope  of  a  speedy  restora- 
tion of  peace,  and  order,  and  law. 

At  this  Term,  few  cases  of  importance  were  decided, 
other  than  California  land  claims.^    In  Jej^erson  Branch 

1  See  especially  United  States  v.  VaUejo,  1  Black.  541 ;  United  States  v.  CasHUero, 
2  Blackp  1,  involving  the  title  to  the  rich  quicksilver  mines  in  New  Almaden,  Cali- 
fornia, decided  in  1863.  For  an  elaborate  and  interesting  account  of  these  Califor- 
nia land  frauds,  "a  system  of  extensive  frauds  with  forged  grants  and  perjured  wit- 
nesses such  as  the  world  has  seldom  witnessed*',  as  Judge  Grier  said  in  the  VaUejo 
Case,  see  arguments  of  counsel  in  De  Haro  v.  United  SiateSt  6  Wall.  599,  in  1869; 


100  THE  SUPREME  COURT 

Bank  v.  SkeUey,  1  Black,  436,  the  State  of  Ohio  again  at- 
tempted to  induce  the  Court  to  reverse  its  position  as 
to  the  power  of  a  State  to  tax  banks,  which  by  a  prior 
statute  had  been  exempted  from  taxation;  but  the 
Court  said  that  though  it  was  aware  that  its  view  had 
not  been  satisfactory  to  all  persons,  *^  it  has  been  adhered 
to  by  this  Court  in  every  attempt  hitherto  made  to 
relax  it ;  and  we  presume  it  will  be,  until  the  historical 
recollections,  which  induced  the  framers  of  the  Consti- 
tution to  inhibit  the  States  from  passing  any  law  im- 
pairing the  obligation  of  contracts,  have  been  for- 
gotten/* 

Shortly  after  the  opening  of  the  December  Term 
of  1861,  the  precarious  state  of  health  of  both  Taney 
and  Catron  and  the  consequent  retardation  of  the 
work  of  the  Court  made  it  imperative  that  one  of 
the  existing  vacancies  should  be  filled.  Accordingly, 
on  January  SS,  1862,  President  Lincoln  appointed  in 
Judge  McLean's  place  Noah  Haynes  Swayne  of  Ohio. 
Swayne  was  fifty-seven  years  old ;  though  without  pre- 
vious judicial  experience,  he  held  an  eminent  position 
at  the  Ohio  Bar,  and  his  appointment  had  been  vigor- 
ously urged  by  Governor  Dennison,  Senator  Sherman 
and  Senator  Wade.^  Appointments  to  fill  the  vacan- 
cies caused  by  the  death  of  Judge  Daniel  and  the  resig- 
nation of  Judge  Campbell  were  postponed  until  Con- 
gress should  have  come  to  a  final  decision  as  to  the  re- 
distribution of  the  Circuits,  made  necessary  by  the 
disappearance  of  the  two  which  comprised  the  seceding 
States.  It  was  rumored  that  the  appointees  for  the 
new  Circuits  would  be  Senator  OrviUe  H.  Browning  of 

■ee  alio  Uter  the  notorioiu  McGanahan  cUdnis  involved  in  United  States  v.  Oainee, 
SS  How.  926, 1  Wall.  690, 3  Wall.  752 ;  MeOarrahan  v.  Mining  Co,,  06  U.  S.  816. 

1  New  York  Evening  Post,  Jan.  27,  1862;  tlie  New  York  Tribune,  Jan.  28,  1862, 
termed  Swayne  *' one  of  the  ablest  Uwyen  in  Ohio.  '*  Swayne  waa  confirmed  by  the 
Senate,  Jan.  24, 1862,  by  a  vote  of  88  to  1. 


THE  CIVIL  WAR  AND  CHASE  101 

Illinois  and  Caleb  B.  Smith  of  Indiana,  Lincoln's  Sec- 
retary of  the  Interior.  Owing  to  personal  opposition 
to  these  candidates  and  to  State  jealousies,  the  method 
of  grouping  the  Western  and  Southwestern  States 
became  a  subject  of  warm  controversy  in  Congress ;  the 
House  and  the  Senate  adopted  different  plans ;  and  it 
was  not  until  the  very  end  of  the  session,  that  on  July  15, 
186S,  an  agreement  was  reached  and  an  Act  passed  re- 
organizing the  Court.*  To  fill  one  of  the  new  positions 
the  President  appointed,  on  July  16,  Samuel  Freeman 
Miller  of  Iowa.  Miller  was  forty-six  years  old,  an 
outstanding  figure  at  the  Bar  west  of  the  Mississippi 
River,  though  little  known  to  the  country  at  large,  and 
in  no  sense  a  National  figure ;  but  his  appointment  had 
been  vigorously  urged  by  the  lawyers  of  Iowa,  Minne- 
sota, Kansas  and  Wisconsin*  by  the  Governor  and 
Senators  and  Representatives  of  Iowa,  and  by  a  peti- 
tion signed  by  one  hundred  and  twenty-nine  out  of 
one  hundred  and  forty  Congressmen  and  twenty-eight 
out  of  thirty-two  Senators.*  To  the  other  Judgeship, 
the  President  made  no  appointment  for  several  months. 
The  Bar  of  Illinois  urged  the  name  of  Thomas  Drum- 
mond;    that  of  Michigan,  William  A.  Howard;  and 

^  See  97ih  Cong,,  td  Ses».t  July  4, 1862,  especially  speeches  of  Senator  Tnimbull 
and  Senator  Wright.  The  Circuits  were  finally  composed  as  follows :  (6th,  Ca- 
tron's) Ky..  Tcnn.,  Ark.,  Tex.,  La.;  (7th, Swaync's)  Ind.,Ohio;  (8th)  HI.,  Wise.. 
Mich. ;  (9th)  Minn.,  la.,  Kans.,  Mo.  The  New  York  Tribune,  July  14,  1868,  said 
that  by  the  inclusion  of  Ohio  and  Indiana  in  Swajme's  Circuit  the  opponents  of  Smith 
and  Browning  were  suooessful ;  that  by  the  union  of  Wisconsin  and  Illinois,  both 
Browning  and  Senator  James  R.  DoditUe  (of  Wisconsin)  were  put  out  of  the  ques- 
tion, as  Michigan  was  added,  in  the  expectation  that  its  influence  would  defeat 
both.  "  Browning,  whose  prospects  were,  until  he  took  ground  against  the  most 
important  Republican  measures,  considered  the  best,  has  been  the  Jonah  of  the  bill, 
everybody  trying  to  throw  him  overboard.'* 

*  Samwd  Freeman  MHUr,  by  Charles  N.  Gregory,  lotoa  Biog.  Series  (1007),  Yale 
Law  Jour.  (1008),  XVII ;  see  also  article  by  Horace  Stem  in  Cheat  American  Law- 
yers (1008),  VI.  So  little  known  was  Miller  that  the  New  York  Tribune  said  edi- 
torially, July  18, 1862:  "Mr.  Miller's  name  is  printed  'Samuel'  in  the  despatches 
but  we  presume  it  is  'Daniel  F.  Miller',  the  first  Whig  member  of  Congress  ever 
chosen  from  Iowa." 


102  THE  SUPREME  COURT 

that  of  Wisconsin,  James  R.  Doolittle.  Finally,  Lin- 
coln chose  his  dose  personal  friend,  David  Davis  of 
Illinois,  who  was  appointed  on  December  1,  and  con- 
firmed on  December  8,  1862.  Davis  was  forty-seven 
years  of  age,  and  had  been  for  fourteen  years  a  Judge 
of  the  Eighth  Judicial  Circuit  in  Illinois.^ 

The  next  spring,  by  the  Act  of  March  3, 1863,  Con- 
gress established  a  new  (Tenth)  Circuit  comprising 
California  and  Oregon,  and  a  tenth  Associate  Judge ; 
and  to  this  position,  the  President  appointed,  on  March 
6,  Stephen  Johnson  Field  of  California,  who  was  con- 
firmed by  the  Senate,  March  16.  Field  was  forty-six 
years  of  age  and  had  served  as  Judge  and  Chief  Justice 
of  the  Supreme  Court  of  California.  Though  a  Demo- 
crat in  politics,  he  had  been  a  strong  Union  man,  and 
his  appointment,  requested  by  the  whole  California 
delegation,  was  received  with  hearty  applause  through- 
out the  country,  regardless  of  politics  —  **a  fine,  general 
scholar  and  a  thorough  lawyer",  said  the  New  York 
Evening  Posty  "probably  better  acquainted  with  that 
mixed  system  of  law,  Mexican,  Spanish  and  American, 
which  prevails  in  California,  than  any  other  man  in  the 
country.  ...  He  will  long  do  honor  to  the  position 
.  •  .  and  the  Government  will  have  no  more  deter- 
mined supporter. '*  * 

The  Term  beginning  in  December,  1862,  was  a 
notable  one  in  its  effect  upon  the  war.  On  March  10, 
1863,  the  Court  decided  the  group  of  cases  known  as 
the  Prize  Cases ^  2  Black,  635,  headed  by  the  Brig  Amy 
Warwick}     Not  only  were  these  the  first  cases  arising 

>  Damd  Dams,  by  Thomaa  Dent,  Amer,  Law  Rev,  (1019),  LIII. 

>  New  York  Evening  Poet,  March  11,  186S ;  see  also  Cincinnati  Daily  OwuUe, 
March  14, 186S ;  Stephen  Johnson  Field,  by  John  N.  Pomeroy,  Jr.,  Qreat  American 
Lawyere  (1908),  VII. 

*  National  Republican,  March  10,  1862,  said ;  "  Tlie  object  of  this  sitting  of  the 
Court  was  to  announce  its  decision  in  the  great  Almaden  Case  and  the  Prize  Cases, 
Besides  the  counsel  for  and  against  the  Government  there  were  present  a  Urge 


THE  CIVIL  WAR  AND  CHASE  lOS 

out  of  the  Civil  War  to  be  decided  by  this  tribunal,  but 
they  were  far  more  momentous  in  the  issue  involved 
than  any  other  war  case ;  and  their  final  determination 
favorable  to  the  Government's  contention  was  almost 
a  necessary  factor  in  the  suppression  of  the  war.  The 
problem  presented  to  the  Court  was  how  to  apply  the 
rules  of  international  and  prize  law  affecting  attempts 
by  neutrals  to  violate  a  blockade  established  between 
separate  political  powers  recognized  as  belligerents,  to 
the  situation  presented  in  this  war*  The  Government 
of  the  United  States  had  heretofore  acted  upon  the 
theory  that  the  war  was  an  insurrection,  that  there  were 
not  two  belligerent  parties,  and  that  the  political  integ- 
rity of  the  coimtry  had  not  been  modified.*  The 
situation  was  greatly  complicated  by  the  facts  that 
Seward  as  Secretary  of  State  had  inserted  in  his  block- 
ade proclamations,  provisions  unknown  to  interna- 
tional law;  that  he  had  taken  the  ofiBicial  position 
that  "no  war''  existed ;  and  that  the  Government  itself 
was  strenuously  protesting  against  any  recognition  by 
foreign  nations  of  the  Confederacy  as  a  belligerent.* 
If  the  Court  should  decide  that  the  principles  of  in- 
ternational law  applying  in  a  war  between  belligerents 
did  not  control  in  this  case,  the  Government's  blockade 

number  of  dutinguiahed  lawyers  from  different  sections  of  the  country  besides  a 
very  intelligent  and  attentive  audience  including  several  ladies.  The  reading  of 
the  Almaden  Cote  decision  occupied  from  11.80  a.m.  to  2  p.m." 

^  William  MaxwtU  Evarts,  by  Sherman  Evarts,  in  Oreai  American  Lawyers  (1906)» 
VII. 

>  See  New  York  World,  March  17,  1863  Diary  (1863),  by  Adam  Gurowski,  II, 
146  a  ieq„  Feb.  19, 186S:  ''The  counsel  for  the  English  and  rebel  blockade  run- 
ners and  pilferers  find  the  best  point  of  legal  defence,  in  the  unstatesmanlike  and 
unlegal  wording  of  the  proclamation  of  the  blockade,  as  concocted  and  issued  by 
Mr.  Seward,  and  in  the  repeated  declarations  contained  in  the  voluminous  cor- 
respondence of  our  Secretary  of  State,  declarations  asserting  that  no  war  whatever 
is  going  on  in  the  Federal  Republic.  No  war,  —  therefore  no  lawful  prizes  in  the 
ocean.  So,  ignorance  and  humbug  mark  every  step  of  this  foremost  among  the 
pilots  of  a  noble,  highminded,  but  too  confiding  people.  .  .  .  When  Mr.  Seward 
penned  this  doleful  proclamation  of  the  blockade  ...  he  never  had  before  his 
mind  what  a  mess  he  generated,  what  complications  might  arise  therefrom." 


104  THE  SUPREME  COURT 

would  be  entirely  ineffective.    As  Richard  H.  Dana,  one 
of  the  Government's  counsel  wrote :  * 

These  causes  present  our  Constitution  in  a  new  and  pe- 
culiar light.  In  all  States  but  ours,  flow  existing  or  that 
have  ever  existed,  the  function  of  the  Judiciary  is  to  inter- 
pret the  acts  of  the  Government.  In  ours,  it  is  to  decide 
their  legality.  The  Government  is  carrying  on  a  war.  It 
is  exerting  aU  the  powers  of  war.  Yet  the  claimants  of  the 
captured  vessels  not  only  seek  to  save  their  vessels  by  deny- 
ing that  they  are  liable  to  capture  but  deny  the  right  of  the 
Government  to  exercise  war  power,  —  deny  that  this  can  be, 
in  point  of  law,  a  war.  So  the  Judiciary  is  actually,  after 
a  war  of  twenty-three  months'  duration,  to  decide  whether 
the  Government  has  the  l^al  capacity  to  exert  these  war 
powers.  .  .  .  Contemplate,  my  dear  sir,  the  possibility  of  a 
Supreme  Court,  deciding  that  this  blockade  is  illegal !  What 
a  position  it  would  put  us  in  before  the  world  whose  com- 
merce we  have  been  ill^ally  prohibiting,  whom  we  have 
unlawfully  subjected  to  a  cotton  famine,  and  domestic  dan- 
gers and  distress  for  two  years !  It  would  end  the  war,  and 
how  it  would  leave  us  with  neutral  powers,  it  is  fearful  to 
contemplate!  Yet  such  an  event  is  legally  possible  —  I 
do  not  think  it  probable,  hardly  possible,  in  fact.  But  last 
year,  I  think  there  was  danger  of  such  a  result,  when  the 
blockade  was  new  and  before  the  three  new  Judges  were 
appointed.  The  bare  contemplation  of  such  a  possibility 
makes  us  pause  in  our  boastful  assertion  that  our  written 
Constitution  is  clearly  the  best  adapted  to  all  exigencies,  the 
last,  best  gift  to  man. 

The  cases  were  argued  for  twelve  days,  February 
10-25,  by  Attorney-General  Bates,  William  M.  Evarts 
and  Charles  B.  Sedgwick  of  New  York,  Richard  H. 
Dana  of  Boston,  and  Charles  Eames  of  Washington, 
against  James  Mandeville  Carlisle  of  Washington, 
Daniel  Lord  and  Charles  Edwards  of  New  York  and 
Edward  Bangs  of  Boston.     And  the  following  graphic 

^  Riekard  H.  Dana  (1890),  by  Charles  Francis  Adams,  II,  266  s<  Mg.,  letter  of 
Maich  9,  1865. 


THE  CIVIL  WAR  AND   CHASE  105 

description  of  Dana's  argument  and  of  its  effect  upon 
the  Court  was  given  by  an  auditor  in  the  Court-room, 
recalling  ^'the  glow  of  admiration  and  delight  with 
which  they  listened  to  that  luminous  and  exquisite 
presentation  of  the  status  which  armed  the  Executive 
with  power  to  use  the  methods  and  processes  of  war  to 
suppress  the  great  rebellion.  Dry  legal  questioms  were 
lifted  into  the  higher  region  of  international  discussion, 
and  the  philosophy  of  the  barbaric  right  of  capture  of 
private  property  at  sea  was,  for  the  first  time  in  the 
hearing  of  most  of  the  Judges  then  on  the  Bench, 
applied  to  the  pending  situation,  with  a  power  of  rea- 
son and  a  wealth  of  illustration,  and  a  grace  and  fe- 
licity of  style  that  swept  all  before  them.  After  Mr. 
Dana  had  closed  his  argument,  I  happened  to  encounter 
Judge  Grier,  who  had  retired  for  a  moment  to  the  cor- 
ridor in  the  rear  of  the  bench,  and  whose  clear  judicial 
mind  and  finely  cultivated  literary  taste  had  keenly 
enjoyed  the  speech,  and,  in  a  burst  of  imjudicial  en- 
thusiasm, he  said  to  me,  *Well,  your  little  Two  Years 
before  the  Mast  has  settled  that  question ;  there  is  noth- 
ing more  to  say  about  it!'*'*  Dana  himself  wrote 
from  Washington :  "I  have  every  reason  to  be  satisfied 
with  my  argument  and  its  results.  The  compliments 
I  have  received  from  the  Judges  and  audience  and 
counsel  are  quite  too  flattering  to  be  put  on  paper. 
They  seem  to  think  the  philosophy  of  the  law  of  prize 
has  been  developed  for  the  first  time  in  its  bearing  on 
the  present  question.*'  And  later :  "I  have  won  Judge 
Grier*s  heart.  He  pats  me  on  the  shoulder  and  says 
I  have  cleaned  up  all  his  doubts  and  that  it  is  the  best 
argument  he  has  heard  for  five  years,  etc.  The  Attor- 
ney-General seems  quite  overcome  with  his  emotion  on 
the  subject,  and  cannot  say  enough.     Seward  is  flat- 

^  Richard  E.  Dana  (1800).  by  Charles  Francb  Aduns,  II,  260-270. 


108  THE  SUPREME  COURT 

tering,  and  others.'*  The  judgment  of  the  Court  was 
delivered  only  fifteen  days  after  the  close  of  the  argu- 
ment ;  and  while  there  was  a  division  in  the  Court,  it 
was  not  on  political  lines;  for  the  three  Judges  ap- 
pointed by  President  Lincoln,  Swayne,  Miller  and 
Davis,  joined  with  two  of  the  old  Court,  Wayne  and 
Grier,  to  make  up  the  majority  (Chief  Justice  Taney 
and  Judges  Nelson,  Catron  and  Clifford  dissenting)* 
In  giving  the  opinion  of  the  Court,  Judge  Grier  said 
that:  "It  is  not  necessary,  to  constitute  war,  that 
both  parties  should  be  acknowledged  as  independent 
nations  or  sovereign  States.  A  war  may  exist  where 
one  of  the  beUigerents  claims  sovereign  rights  as  against 
the  other  .  .  •  and  whether  the  hostile  party  be  a 
foreign  invader,  or  States  organized  in  rebellion,  it  is 
none  the  less  a  war,  although  the  declaration  of  it  be 
*  unilateral/ "  It  was  held  that  the  President's  proc- 
lamation of  a  blockade  was  a  lawful  exercise  of  his 
power  to  meet  and  suppress  the  war,  "  in  the  shape  in 
which  it  presented  itself/'  This  decision  was  greeted 
by  the  press  of  the  North  with  approval  and  relief. 
There  had  been  grave  fears  lest  the  Court,  composed  of 
a  majority  of  the  Judges  appointed  prior  to  the  war, 
might  embarrass  the  Administration,  by  denying  the 
legality  of  President  Lincoln's  actions,  many  of  which 
had  been  initiated  without  legislative  sanction.  A 
striking  illustration  of  the  apprehensions  with  which 
the  result  of  the  case  had  been  awaited,  appeared  in  an 
elaborate  editorial  consideration  which  the  New  York 
Times  gave  to  the  attitude  of  the  "Copperheads'*  to- 
wards the  Courts.*  It  stated  that,  beginning  with 
the  Merryman  habeas  corpus,  appeals  to  the  civil 
Courts  had  figured  largely  in  the  attempts  made  to 

^New  York  Times,  March  18,  1868;  New  York  World,  March  14.  17,  1868; 
New  York  Tribune,  March  18,  1868;  National  Republican,  March  11,  1868.  See 
eLk)  Law  Reporter  (1863),  787,  quoting  letter  from  Boston  Adoertiaer,  Dec.  18, 1868. 


THE  CIVIL  WAR  AND  CHASE  107 

embarrass  and  weaken  the  Government.  It  rejoiced 
that  hitherto  these  attempts  had  failed,  and  that  the 
Judges  had  generally  shown  a  loyal  spirit,  and  had  had 
"  both  the  heart  and  head  to  refuse  cooperation  with 
factious  men,"  and  had  in  habeas  corpus  proceedings 
been  content  to  await  the  decision  of  the  highest 
tribunal  before  releasing  men  under  military  arrest; 
and  it  further  rejoiced  that  the  hope  of  the  "Copper- 
heads" "to  cast  a  vast  burden  upon  the  Treasury,  by 
annulling  the  blockade  proclaimed  by  the  President 
before  the  meeting  of  Congress,  is  dashed  by  a  deci- 
sion that  the  President  had  a  complete  right  to  in- 
stitute the  blockade,  without  awaiting  Congressional 
action."  It  found  grounds  for  expecting  the  Court  to 
uphold  the  legality  of  the  Emancipation  Proclamation ; 
for,  it  said,  "the  Court  distinctly  recognizes  the  jtis 
belii,  the  war  power,  against  which  so  much  passionate 
declamation  has  been  expended.  It  is  said  that  the 
President  may  exert  this  power  by  proclamation,  and 
that  all  the  sinews  of  war  may  thus  be  cut.  It  is  diffi- 
cult to  see  why  the  very  broad  language  of  the  Court 
in  respect  to  the  proclamation  of  the  blockade  does  not 
involve  the  constitutional  validity  of  the  proclamation 
against  slave  property.  ...  It  is  our  firm  conviction 
that  the  Supreme  Court  would  indorse  the  constitu- 
tional validity  of  every  important  act  of  the  Executive 
or  of  Congress  thus  far  in  the  rebellion."  The  National 
Republican  rejoiced  that  the  dissenting  opinion  of 
Judge  Nelson  had  not  prevailed,  as  it  left  "an  unpleas- 
ant and  unsatisfactory  feeling  of  apprehension  that  the 
powers  of  the  Government,  as  found  in  the  Constitution, 
were  not  adequate  to  the  high  and  imperative  duties 
which  devolved  upon  it,  of  using  all  possible  means  of 
crushing  the  war  of  the  rebellion  at  the  outset." 
That  the  Court  was  insistent  on  upholding  the  arm  of 


108  THE  SUPREME  COURT 

the  Grovemment  in  its  war  operations  was  seen  in  an- 
other important  decision^  rendered  on  the  same  day  with 
the  Prize  Cases^  March  10, 1863,  in  Bank  of  Commerce  v. 
New  Yofky  2  Black,  620,  strongly  denouncing  any  in- 
terference by  a  State  with  the  powers  and  f imctions  of 
the  National  Government.  In  this  case,  the  State  of 
New  York  had  attempted  to  tax  the  capital  of  a  bank, 
part  of  which  was  invested  in  stock  and  bonds  of  the 
United  States.  The  exercise  of  such  attempted  au- 
thority was  held  to  be  in  derogation  of  the  power  of  the 
Nation  to  borrow  money,  "one  of  the  most  important 
and  even  vital  functions  of  the  General  Government 
...  a  means  of  supplying  the  necessary  resources 
to  meet  exigencies  in  time  of  peace  or  war."  While 
admitting  that  "there  is  and  must  always  be  a  con- 
siderable latitude  of  discretion  in  every  wise  govern- 
ment in  the  exercise  of  the  taxing  power".  Judge  Nel- 
son said  that  this  principle  would  not  warrant  the  tres- 
pass by  a  State  upon  the  functions  of  the  Nation; 
that  while  it  might  be  difficult  oftentimes  to  fix  the  true 
boundary  between  the  two  systems,  "  each  is  sovereign 
and  independent  in  its  sphere  of  action,  and  exempt 
from  the  interference  or  control  of  the  other,  either 
in  the  means  employed  or  functions  exercised";  and 
he  added,  "  influenced  by  a  public  and  patriotic  spirit 
on  both  sides,  a  conflict  of  authority  need  not  occur 
or  be  feared."  The  hope  of  the  Copperheads  "to 
damage  the  credit  of  the  Government  by  subjecting 
its  bonds  to  State  and  other  local  taxation  is  dashed", 
said  the  New  York  Tim^s.  The  importance  of  the  clear 
announcement  of  the  principle  asserted  in  this  case, 
just  at  this  period  when  the  financing  of  the  war  was 
becoming  increasingly  difficult,  cannot  be  overesti- 
mated. 
That  the  Court,  however,  even  in  time  of  war,  was 


THE  CIVIL  WAR  AND  CHASE  109 

not  inclined  to  acquiesce  in  any  extension  of  National 
authority  which  it  deemed  unwarranted  by  the  Consti- 
tution was  seen  in  its  attitude  towards  the  provision 
of  the  Federal  income  tax  law,  imposing  a  tax  upon  the 
incomes  of  the  Judges.  In  denial  of  the  validity  of 
such  a  tax.  Chief  Justice  Taney  wrote  to  the  Secretary 
of  the  Treasury,  saying  that  he  would  "not  by  any 
act  or  word  of  mine  have  it  supposed  that  I  acquiesce 
in  a  measure  that  displaces  it  (the  Judicial  Department) 
from  the  independent  position  assigned  to  it  by  the 
statesmen  who  framed  the  Constitution."  The  Secre- 
tary having  ignored  this  communication,  the  Court  it- 
self, on  the  day  of  the  decision  of  the  Prize  Cases,  March 
10, 1868,  ordered  a  copy  of  the  letter  to  be  entered  on  its 
records.* 

At  the  December,  1863,  Term,  it  was  supposed  that 
the  great  question  of  the  constitutional  power  of  Con- 
gress to  issue  legal  tender  paper  money  would  be  de- 
cided, for  a  case  involving  the  validity  of  the  Legal 
Tender  Acts  was  before  the  Court,  on  a  writ  of  error  to 
the  New  York  State  Supreme  Court,  Roosevelt  v.  Meyer, 
1  Wall.  512.  By  curious  mischance,  the  question  was 
not  decided,  owing  to  the  fact  that  the  Court  held  that 
it  had  no  jurisdiction  of  the  case  (although  nine  years 
later,  it  was  obliged  to  admit  that  its  decision  had  been 
wrong,  and  to  overrule  it).  Had  the  case  been  decided 
in  1863,  instead  of  in  1870,  it  is  probable  that  the  Legal 
Tender  Acts  would  have  been  held  invalid  by  so  large  a 
majority  of  the  Court  that  no  attempt  would  have 
been  made  to  reverse  the  decision,  and  the  Court  would 
have  been  spared  the  charges  and  the  temporary 
discredit,  later  brought  upon  it  by  the  rendering  of  its 
two  contradictory  decisions,  in  1870  and  1871.  The 
effect  of  an  adverse  decision  in  1863  upon  the  methods 

^  Tan§if,i»%;  Opinionof  the  Judget ol  Ftb.  16»  1808,  in  158 U.  S.  App. 


110  THE  SUPREME  COURT 

then  employed  to  finance  the  wtir  presents  an  interest- 
ing field  for  surmise. 

One  other  case  of  historical  importance  with  relation 
to  the  war  may  be  noted,  Ex  parte  VaUandigham,  1 
Wall.  243,  in  which  it  had  been  expected  that  the  whole 
question  of  the  validity  of  the  arrests  and  military  trials 
ordered  by  Lincoln  and  Stanton  would  be  presented  for 
the  decision  of  the  Court.  The  possibility,  however, 
of  a  conflict  between  the  Court  and  the  Executive 
on  this  serious  point  was  averted  by  a  ruling  that  the 
Court  had  no  jurisdiction  of  a  petition  of  habeas  corpus 
issued  to  a  military  commission;  consequently  no  de- 
cision of  the  question  was  made  until  after  the  end  of 
the  war,  in  Ex  parte  Milligan,  in  1866. 

Before  the  opening  of  the  December  Term  of  1864, 
Chief  Justice  Taney  (who  had  been  ill  during  the  whole 
of  the  previous  Term)  died  on  October  12,  1864.  He 
was  then  in  his  eighty-eighth  year,  and  had  presided 
over  the  Court  for  more  than  twenty-eight  years. 
When  the  Court  met  on  December  7,  1864,  resolutions 
of  the  Bar  were  presented  by  Thomas  Ewing,  stating 
that  "deeply  impressed  by  the  great  and  good  qualities 
and  acquirements  and  illustrious  life"  of  Taney,  they 
deplored  "the  decree,  inevitable  at  his  advanced  age, 
which  had  removed  him  from  his  place  of  usefulness, 
dignity  and  honor  here."  ^  In  his  reply  to  these  reso- 
lutions. Judge  Wayne,  after  alluding  to  the  Chief  Jus- 
tice and  referring  to  the  body  of  law  built  up  by  his 
decisions  and  by  those  of  his  predecessor,  closed  with  a 
patriotic  comment  upon  the  war  and  the  duty  of  the 
Court  in  maintaining  this  great  constitutional  system 

1  The  meeting  of  the  Bar  had  been  held,  Dec.  6, 1864,  and  addresses  were  made  by 
Thomas  Ewing,  J.  M.  Carlisle,  Henry  Stanbeiy,  Reverdy  Johnson  and  Charles 
O'Conor.  The  National  RepMiean,  Dec.  7,  1864,  stated  that  the  resolutions  were 
**read  by  James  M.  Carlisle  who  framed  them.  Justice  Wayne  in  a  low  and  tremu- 
lous voioe  which  was  semi-audible  replied  in  behalf  of  the  Court." 


THE  CIVIL  WAR  AND  CHASE  111 

of  law:  "It  is  truly  a  system  upon  which  we  can  rely, 
as  a  foundation  for  securing  the  rights  and  independence 
of  the  States  of  this  Union  and  our  National  Liberty. 
Gentlemen  of  the  Bar,  it  is  our  part  to  maintain  it,  and 
if  this  shall  be  done  with  discretion,  and  with  a  spirit 
exempt  from  the  corruptions  of  party,  our  country 
will  again  be  what  it  was/^ 

The  persistence  of  the  bitterness  of  partisan  feeling 
which  had  been  aroused  by  Taney's  fatal  decision  in 
the  Dred  Scott  Case  was  shown  by  an  entry  in  the  diary 
of  Gideon  Welles,  the  Secretary  of  the  Navy,  with 
reference  to  a  discussion  in  the  Cabinet  as  to  its  at- 
tendance at  Taney's  funeral :  ^ 

I  felt  little  inclined  to  participate.  I  have  never  called 
upon  him  living,  and  while  his  position  and  office  were  to  be 
respected,  I  had  no  honors  for  the  deceased  beyond  those 
that  were  public.  That  he  had  many  good  qualities  and 
possessed  ability,  I  do  not  doubt ;  that  he  rendered  service 
in  Jackson's  Administration  is  true,  and  during  most  of  his 
political  life,  he  was  upright  and  just.  But  the  course  pur- 
sued in  the  Dred  Scott  Case  and  all  the  attending  circum- 
stances forfeited  respect  for  him  as  a  man  or  Judge  .  .  . 
for  I  have  looked  on  him  and  his  Court  as  having  contrib- 
uted, imintentionally,  perhaps,  but  largely,  to  the  calami- 
ties of  our  afflicted  country.  They  probably  did  not  mean 
treason,  but  thought  their  wisdom  and  official  position 
would  give  national  sanction  to  a  great  wrong. 

Many  Republican  newspapers  commented  on  Taney's 
death  with  extreme  rancor.  The  Independent^  while 
stating  that  ""a  long  life  of  public  service  in  posts  of 
great  power  and  dignity  is  just  ended",  and  while  ad- 
mitting his  "unblemished  private  life",  could  not 
refrain  from  making  the  occasion  an  excuse  for  a  further 
attack  on  the  "infamous  decision"  and  his  "perdurable 
ignominy",  and  it  repeated  the  false  charge  that  Taney 

1  The  Diary  of  Qidwn  WMes  (1911),  Oct.  14,  Not.  86, 1864. 


112  THE  SUPREME  COURT 

had  stated  that  the  negro  had  no  rights  which  a  white 
man  was  bound  to  respect.  "This  sentence,"  it  said, 
"will  keep  the  memory  of  Chief  Justice  Taney  in 
the  popular  mind,  as  long  as  the  memory  of  slavery 
endures.  It  compresses  into  a  single  line  the  whole 
bloody  history  and  lawless  law  of  slavery .  .  .  •  History 
will  expose  him  to  eternal  scorn  in  the  pillory  she  has  set 
up  for  infamous  Judges/'^  The  Cincinnati  Gazette 
delivered  a  violent  invective  on  the  Dred  Scott  decision, 
which  it  termed  "astounding  to  lawyers  and  revolting 
to  every  humane  man";  and  it  stated  that  as  the 
Court  became  successively  more  "degraded",  the 
Democratic  Party  "began  to  set  up  its  decision  as  a 
finality.  They  dragged  it  into  the  party  arena  to 
decide  political  questions,"  in  all  of  which  Judge  Taney 
was  "as  subservient  an  instrument  as  in  the  tyrannical 
act  for  which  he  was  rewarded  by  his  place  on  the 
Bench."  Other  papers  even  questioned  Taney's  pa- 
triotism. Thus,  the  Washington  correspondent  of  the 
Philadelphia  Press  wrote  that  Taney  had  earned  great 
and  just  renown,  and  had  been  accepted  as  the  best 
embodiment  of  a  pure  and  conscientious  Justice,  until 
"that  fatal  decree  which  in  great  part  has  been  the 
source  of  all  our  woes.  .  .  .  The  Supreme  Court  from 
that  time  became  a  political,  if  not  a  party,  tribunal,  and 
the  awe  and  veneration  that  had  so  long  surrounded 
its  Chief  were  supplanted  by  suspicion  and  dis- 
trust. .  .  .  Nobody  doubts  that  Taney  died  with  his 
heart  beating  for  the  Rebellion.  He  scarcely  took 
pains  to  conceal  his  feelings.    Some  of  his  decisions  in 

>  Independent,  Oct.  20, 1864 ;  Cineinnaii  OoMeUe,  Oct.  14,  20,  1864 ;  Philaddpkia 
Press,  Oct.  14,  1864 ;  PkOadeljMa  North  American,  Oct.  14,  1864.  The  Nation, 
Apill  28, 1880,  stated  tlutt  the  Btoiy  used  to  be  told  of  Benjamin  F.  Wade,  the  radical 
Republican  Senator  from  Ohio,  "that  old  Ben  said  he  had  for  many  weary  years 
earnestly  prayed  that  the  author  of  the  Died  Scott  decision  might  live  until  a 
Republican  President  could  name  his  successor  —  and  he  began  to  fear  that  he 
prayed  too  hard.** 


THE  CIVIL  WAB  AND  CHASE  US 

the  early  days  of  that  most  murderous  revolt  were  held 
to  be  ahnost  partisan.  Hence,  however  we  may  re- 
member and  respect  his  past  excellence,  no  true  friend 
of  the  Government  can  feel  that  his  loss  is  a  National 
loss/'  And  the  Philadelphia  North  American  made 
an  equally  unwarranted  assault,  stating  that  subser- 
viency and  partisanship  were  characteristic  of  his 
nature,  proofs  of  which  he  had  afforded  "by  his  ef- 
forts to  relieve  Maryland  traitors  from  arrest*  .  .  . 
The  Nation  can  feel  little  regret  at  his  removal  from  an 
office  which,  in  his  hands,  has  been  so  promiscuously 
used.  It  is  fortimate  for  the  interests  of  humanity 
that  the  President  and  Senate  who  must  fill  the  vacancy 
are  devoted  to  the  interests  of  republican  liberty  and 
will  suffer  no  man  of  that  school  of  politics  to  which 
Taney  belonged  to  intrude  into  the  judicial  robes  of 
which  death  has  deprived  him." 

There  were,  however,  many  strong  Republican  pa- 
pers which  were  not  blinded  by  passions  arising  out  of 
the  slavery  question,  and  which  frankly  admitted  the 
greatness  of  the  dead  Chief  Justice.^  '^He  discharged 
the  high  duties  of  his  position  with  a  dignity,  impar- 
tiality, and  integrity  which  have  reflected  honor  on  his 
country,  and  in  a  manner  which,  with  one  notable  ex- 
ception, have  been  entirely  satisfactory  to  his  country- 
men,*' said  the  Washington  Chronicle;  and  the  New 
York  Tribune^  while  terming  him  "a  votary  and  pillar 
of  the  Slave  Power",  said  that  though  not  so  wise  a  man 
as  Marshall,  he  was  still  an  "able,  learned,  upright 
Judge,  whose  one  signal  aberration  from  the  line  of  duty 
his  surviving  countrymen  will  now  hasten  to  forget", 
and  that  *^it  is  no  more  just  than  generous  to  question 
his  mtegrity,  nor  his  sincerity,  whatever  we  may  think 

1  Wa$kingUm  Ckranids,  Oct.  18,  1864 ;  Missouri  Democrat,  Oct.  18,  1864 ;  Nsw 
York  Tribune,  Oct.  14, 15, 1864 ;  New  York  Times,  Oct.  14, 1864 ;  Ohio  State  Jour- 
nal, Oct  17, 1864 ;  Boston  Daily  Advertiser,  Oct.  14, 1864. 


114  THE  SUPREME  COURT 

of  the  quality  of  his  patriotism.  .  •  •  It  were  unjust 
to  presume  that  he  did  not  truly  and  earnestly  seek  the 
good  of  his  country/'  The  New  York  Times  spoke  of 
Taney's  "pure,  moral  character  and  great  legal  learn- 
ing and  acumen",  and  said:  "Had  it  not  been  for  his 
unfortunate  Dred  Scott  decision,  all  would  admit  that 
he  had,  through  all  these  years,  nobly  sustained  his 
high  office.  That  decision  itself,  wrong  as  it  was,  did 
not  spring  from  a  corrupt  or  malignant  heart.  It  came, 
we  have  charity  to  believe,  from  a  sincere  desire  to 
compose,  rather  than  exacerbate,  sectional  discord. 
But  yet  it  was  none  the  less  an  act  of  supreme  folly,  and 
its  shadow  will  ever  rest  on  his  renown.'*  And  the 
Boston  Advertiser  said  that,  imtil  the  Dred  Scott  decision, 
Taney  "by  his  acquirements  as  a  jurist  and  his  grave 
deportment  seemed  the  worthy  successor  of  Marshall ; 
•  •  .  and  as  the  political  excitements  of  the  day  dis- 
appear, and  his  character  as  a  Judge  comes  to  be  read 
in  the  long  course  of  his  judgments,  rather  than  in  po- 
litical discussion,  we  may  well  believe  that  his  name 
will  again  shine  brilliantly  and  permanently  among 
those  of  the  greatest  of  American  lawyers  and  jurists."  * 
That  the  Democratic  papers  would  eulogize  the 
Chief  Justice  was  to  have  been  expected;  and  the 
World  said  that  Taney  possessed  one  indispensable 
qualification  for  his  position  which  even  his  assailants 
admitted,  "a  high  and  intrepid  independence  —  that 
moral  fearlessness  which  is  deterred  by  no  obloquy  from 

^  That  even  with  Republicans  the  feelings  aroused  by  Taney's  Dred  Scott  decision 
had  begun  to  die  down  prior  to  his  death  is  seen  from  an  editorial  in  Harper* a  Weekly^ 
Dec.  8,  1860,  which  stated :  "Taney  has  won  high  fame.  His  opinions  command 
general  respect.  .  .  .  Within  the  past  year  or  two,  he  has,  after  twenty  years 
absolution  from  the  strife  of  politics,  been  subjected  to  some  animadversion  by 
members  of  the  Republican  party,  in  consequence  of  the  Dred  Scott  decision.  With- 
out entering  upon  the  controversy  involved  in  this  celebrated  case,  we  may  close 
this  brief  sketch  with  the  remark  that  when  Judge  Taney  shall  have  disappeared 
altogether  from  public  life,  members  of  all  parties  will  unite  to  commend  Us  vast 
learning,  his  unspotted  integrity  and  his  remarkable  suavity." 


THE  CIVIL  WAR  AND  CHASE  116 

stern  obedience  to  honest  convictions/'  The  Na- 
tional Intelligencer  said  that  he  left  '^a  reputation  as 
much  distinguished  by  the  superior  dignity  of  his 
character  as  by  the  extraordinary  vigor  of  intellect"; 
and  the  Baltimore  Sun  said  that  the  ^'common  opinion 
of  his  countrymen  bears  witness  to  his  faithful  perform- 
ance  of  the  great  duties  of  his  station.  .  .  .  He  will 
go  to  his  grave,  followed  by  the  reverence  and  regret 
of  the  wise,  the  thoughtful  and  the  virtuous  of  his 
generation."  ' 

The  persistence  of  the  implacable  hatred  entertained 
by  the  radical  anti-slavery  Republicans  towards  the 
Chief  Justice  was  illustrated,  four  months  after  his 
death,  by  a  debate  in  February,  1865,  on  a  bill  which 
had  been  introduced  by  Lyman  Trumbull,  the  promi- 
nent Republican  Senator  from  Illinois,  for  the  placing 
of  a  marble  bust  of  Taney  in  the  Supreme  Court-room 
(where  already  busts  of  Jay,  Ellsworth  and  Marshall 
had  been  installed).^  "I  object,"  said  Charles  Sum- 
ner, *'that  an  emancipated  country  should  make  a  bust 
to  the  author  of  the  Dred  Scott  decision/*  To  this, 
Trumbull  replied:  "A  person  who  has  presided  over 
the  Supreme  Court  for  more  than  a  quarter  of  a  cen- 
tury and  has  added  reputation  to  the  character  of  the 
Judiciary  of  the  United  States  throughout  the  world 
is  not  to  be  hooted  down,  by  an  exclamation  that  the 
country  is  to  be  emancipated.  Suppose  he  did  make  a 
wrong  decision.  No  man  is  infallible.  He  was  a  great 
and  learned  and  able  man."  '  "The  name  of  Taney," 
retorted  Sumner,  "is  to  be  hooted  down  the  page  of 

1  New  York  World,  Oct.  14, 1864;  National  Intelligencer,  Oct.  13, 1864;  see  also 
Nov.  10, 1864,  quoting  address  of  William  L.  Pryor  before  the  United  States  Circuit 
Court  in  New  York,  and  the  response  of  Judge  Nelson ;  Baltimore  Sun,  Oct.  14, 1864. 

>  38th  Cong,,  U  Sees,,  Feb.  93, 1865, 1012  et  seq. 

'  See  editorial  in  Springfield  Republican,  Jan.  26,  1867,  entitled  "The  Just  are 
Generous  ",  with  reference  to  efforts  made  in  Illinois  to  defeat  Trumbull  for  rejection 
because  of  his  vote  on  the  Taney  bust  question. 


116  THE  SUPREME  COURT 

history.  •  .  .  The  Senator  says  that  he  for  twenty- 
five  years  admmistered  justice.  He  administered  jus- 
tice, at  last,  wickedly,  and  degraded  the  Judiciary  of 
the  country  and  degraded  the  age.'*  This  extreme 
attack  brought  to  his  defense  the  warm  personal 
friend  of  the  late  Chief  Justice,  Reverdy  Johnson, 
Senator  from  Maryland,  who  said:  '"I  cannot  fail  to 
express  my  astonishment  at  the  course  of  the  honorable 
Senator  from  Massachusetts,  which  he  thinks  it,  I 
suppose,  his  duty  to  pursue.  If  the  times  in  which 
we  are  living  are  honestly  and  truly  recorded  by  the 
historian,  I  think  the  honorable  member  from  Massa- 
chusetts will  be  very  happy,  if  he  stands  as  pure  and 
high  upon  the  historic  page  as  the  learned  Judge  who  is 
now  no  more.  .  .  .  The  decisions  of  that  learned  jurist 
are  now  quoted  with  approbation  everywhere;  and 
there  is  not  a  Judge  upon  the  Bench  now  (three  or  four 
of  them  having  been  selected  by  the  present  incumbent 
of  the  Presidential  office)  who  will  not  say  at  once  that  a 
brighter  intellect  never  adorned  the  judicial  chair.**  ^ 
Trumbull  also  defended  the  dead  man's  name :  '*I  will 
not  imdertake  to  institute  a  comparison  between  Mar- 
shall and  Taney.  They  were  great  men,  both  of  them 
great  jurists,  and  each  of  them  has  shed  luster  upon  the 
judicial  tribunal  over  which  he  presided.  Each  was  a 
man  of  great  ability,  of  great  learning,  of  great  purity 
of  character;  and  I  am  sorry  that  the  Senator  from 
Massachusetts  should  come  in  with  this  denunciation  of 
a  man,  against  whom  he  can  find  no  fault  except  that 

^  In  ft  debate  over  the  Territory  of  Montana  bUl,  March  31»  1864,  Johnaon  had 
replied  to  Sumner'a  criticiam  of  the  Dred  Scott  decision,  in  these  caustic  words : 
**  I  have  yet  to  be  advised  that  the  honorable  member,  either  by  nature  or  education, 
has  attained  so  much  intellectual  celebrity,  or  possesses  such  transcendent  mental 
ability  as  to  be  able  to  pronounce  car  cathedra  against  a  decision  pronounced  by  the 
Supreme  Court  of  the  United  States.  There  are  many  men,  the  equals  of  the  honor- 
able Senator,  to  say  the  least,  intellectually,  who  think  that  that  decision  was  any- 
thing but  an  outrage." 


THE  CIVIL  WAR  AND  CHASE  117 

he  made  an  erroneous  decision";  and  he  added  with 
sarcasm:  ""If  the  Senator  from  Massachusetts  had 
presided,  or  should  ever  preside,  over  the  Supreme  Court 
of  the  United  States  for  thirty  years,  he  would  be  more 
than  man,  if  he  did  not  make  any  erroneous  decision." 
Sumner  returned  to  the  charge  with  even  more  extrav- 
agant language,  saying  that  Taney  should  be  "left 
to  the  sympathetic  companionship  of  Jeffreys  •  .  . 
the  tool  of  unjust  power.  .  .  •  What  is  the  oflBice  of 
Chief  Justice,  if  it  has  been  used  to  betray  Human 
Rights  ?  The  crime  is  great,  according  to  the  position 
of  the  criminal.  If  you  were  asked  to  mention  the 
incident  of  our  history  previous  to  the  Rebellion  which 
was  in  all  respects  most  worthy  of  condemnation,  most 
calculated  to  cause  the  blush  of  shame,  and  most  deadly 
in  its  consequences  I  do  not  doubt  that  you  would  say 
the  Dred  Scott  decision  and  especially  the  wicked  opin- 
ion of  the  Chief  Justice.  .  .  .  Judicial  baseness  reached 
its  lowest  point  on  that  occasion.  You  have  not  for- 
gotten that  terrible  decision  where  a  most  unrighteous 
judgment  was  sustained  by  a  falsification  of  history." 
Senator  Henry  Wilson  of  Massachusetts  said  that  the 
Dred  Scott  decision  was  "the  greatest  crime  in  the 
judicial  annals  of  the  Republic",  and  that  Taney  was 
"recreant  to  liberty  and  humanity.  ...  It  is  not 
in  the  power  of  the  Congress  of  the  United  States  to 
affect  his  reputation  with  the  present  or  with  the 
coming  ages.  Laudations,  statues  and  busts  will  be  as 
impotent  as  were  the  eulogies  pronounced  by  a  few 
conservative  gentlemen  in  the  Supreme  Court-room  a 
few  weeks  ago."  ^  The  debate  was  closed  by  Sumner 
—  "Taney  shall  not  be  represented  as  a  saint  by  any 

^The  AUanHe  Monthly  in  February,  1865,  said  that  Taney  "will  most  likely, 
after  the  traitor  leaders,  be  held  in  infamous  remembrance"  and  that  he  covered 
"the  most  glorious  pages  of  his  country's  history  with  infamy,  and  insulted  the 
virtue  and  inteUigenoe  of  the  civilized  world." 


118  THE  SUPREME  COURT 

vote  of  Congress,  if  I  can  help  it/'  The  bill  was  lost 
at  this  session  of  Congress.  Later,  however,  on  January 
S9,  1874,  about  a  month  before  Sumner's  death,  a  bill 
for  the  busts  of  Chase  and  Taney  was  passed  without 
debate,  and  they  were  duly  placed  in  the  Court-room. 
History  has  recorded  a  very  different  verdict  upon 
his  place  in  the  annals  of  the  legal  history  of  the  coun- 
try from  that  which  Sumner  and  Wilson  endeavored  to 
establish.  "Before  the  first  term  of  my  service  in  the 
Court  had  passed,  I  more  than  liked  him;  I  loved 
him,"  said  Judge  Miller,  later.  "And  after  all  that 
has  been  said  of  that  great  good  man,  I  always  stand 
ready  to  say  that  conscience  was  his  guide,  and  sense  of 
duty  his  principle."  "Few  Judges  have  had  wider 
experience,  and  none,  perhaps,  more  capable  of  forming 
a  sound  and  unimpassioned  judgment,"  said  Judge 
Dillon.  George  Ticknor  Curtis,  one  of  the  counsel  who 
had  argued  before  Taney  in  behalf  of  Dred  Scott,  writ- 
ing only  fourteen  years  after  Taney's  death,  paid  the 
following  handsome  and  judicious  tribute  to  his  quali- 
ties: "He  was  indeed  a  great  magistrate,  and  a  man 
of  singular  purity  of  life  and  character.  That  there 
should  have  been  one  mistake  in  a  judicial  career  so 
long,  so  exalted,  and  so  useful,  is  only  proof  of  the  im- 
perfection of  our  natures.  ...  If  he  had  never  done 
anything  else  that  was  high,  heroic  and  important,  his 
noble  vindication  of  the  writ  of  habeas  corpus  and  of 
the  dignity  and  authority  of  his  office  against  a  rash 
minister  of  state,  who,  in  the  pride  of  a  fancied  Executive 
power,  came  near  to  the  commission  of  a  great  crime, 
wiU  command  the  admiration  and  gratitude  of  every 
lover  of  constitutional  liberty,  so  long  as  our  institu- 
tions shall  endure."  ^    And  a  sane  and  temperate  review 

1  Samud  Freeman  Miller,  by  Charles  N.  Gregory,  YaU  Law  Joum,  (1908),  XVII ; 
A  Oreat  Judicial  Character  —  Roger  Brooke  Taney,  by  Charies  N.  Giegoiy,  ilnd. 


THE  CIVIL  WAR  AND  CHASE  119 

of  Taney's  life  in  a  leading  law  journal,  written  only 
eight  years  after  his  death,  thus  portrayed  his  position 
in  legal  annals.  "He  presided  over  the  Supreme  Court 
of  the  United  States  for  upwards  of  twenty-eight  years. 
To  borrow  the  suggestive  words  of  Cushing :  *  He  had 
inducted  into  office  nine  Presidents  of  the  United 
States ;  and  as  he  stood  on  that  historic  eastern  front 
of  the  Capitol,  the  Republic's  giant  steps,  in  the  lofty 
dignity  of  his  great  form  and  office,  year  after  year  wit- 
nessing and  assisting  at  the  rise  and  fall  of  parties,  of 
Administrations,  of  dynasties,  all  else  seemed  to  be 
transitory  as  day  and  night,  evanescent  as  dream- 
si)ectres,  whilst  he  and  it  were  stable  and  monumental 
alone  in  this  government/  His  professional  career  was 
nearly  contemporaneous  with  the  judicial  career  of 
Chief  Justice  Marshall.  Together  they  filled  that  high 
office  for  more  than  sixty-three  years,  and  may  be  said 
to  have  built  up  the  great  structure  of  Federal  juris- 
prudence, of  which  the  foundation  only  was  laid  by 
their  predecessors.  .  .  .  Upon  all  points  of  new  prac- 
tice, he  almost  uniformly,  even  when  very  infirm  and 
unable  to  write  other  opinions,  delivered  the  judgment 
of  the  Court.  The  stability,  uniformity,  and  com- 
pleteness of  our  National  jurisprudence  is  largely  to  be 
attributed  to  the  fact  that,  for  sixty-three  years,  only 
two  persons  presided  over  the  Supreme  Court  and  that, 
when  its  business  accumulated  and  the  docket  became 
crowded.  Chief  Justice  Taney  possessed  that  organizing 
genius  which  rendered  the  practice  complete  and  sys- 
tematic. His  judicial  Associates  speak  with  profound 
respect  of  his  value  in  the  consultation-room;  and  it 
is  the  concurrent  voice  of  all  whose  professional  avo- 
cations brought  them  into  personal  relations  with  him 

(1906),  XVlll ;  Laws  and  Juruprudence  qf  England  and  America  (1805),  by  John 
F.  Dilkm*  l(r7 ;  CurUs,  1. 88IHM6 ;  Amer.  Law  Beo.  (1878),  VU,  827-828. 


120  THE  SUPREME  COURT 

that  there  was  a  sweetness  and  benignity,  a  courtesy 
of  the  heart  as  well  as  of  the  manner,  and  a  simple 
kindliness,  especially  to  the  younger  members  of  his 
profession,  which  rendered  him  a  conspicuous  example 
for  all  Judges  to  imitate.  The  patient  and  untiring 
attention  which  he  always  gave  to  counsel  while  address- 
ing the  Court  is  worthy  of  perpetual  remembrance. 
.  .  .  Whatever  opinion  posterity  may  form  of  the 
greatness  of  the  Judge,  there  can  be  but  one  as  to  the 
purity  of  his  heart  and  his  earnest  fidelity  to  his  own 
understanding  of  his  duty.  He  was  twice  the  object  of 
general  denunciation  by  large  multitudes  of  his  coun- 
trymen. ...  It  is  doubtless  too  soon  to  expect  cool 
and  fair  judgment  upon  one  who  on  such  different  oc- 
casions, so  conspicuously  opposed  popular  sentiment. 
It  is  an  unhappy  American  custom  to  charge  treason 
and  baseness  upon  those  who  differ  from  us  on  great 
questions  of  policy  and  law.  .  .  .  The  calmer  judg- 
ment of  posterity  may,  perchance,  say  that,  as  an  ab- 
stract question  of  constitutional  law,  the  Chief  Justice 
rightly  interpreted  the  law  as  it  was,  and  that  the  dis- 
senting voices  only  proclaimed  what  it  should  have 
been.  Revolution  has  confirmed  their  dissent,  and,  if 
amendment  was  needed,  the  sword  has  amended  the 
construction  now." 

As  soon  as  the  death  of  Taney  was  announced,  agita- 
tion as  to  his  successor  became  active,  and  the  proba- 
bility of  a  Republican  Chief  Justice  was  hailed  with 
delight  by  the  supporters  of  the  Union.  "  So  old  Taney 
is  dead,**  wrote  Col.  Charles  Francis  Adams.  "These 
fatal  Ides  of  November  bid  fair  to  see  the  Executive, 
Legislative,  Judiciary  and  Army  of  this  country  working 
in  one  harmonious  whole  like  the  strands  of  a  cable. 
It  is  a  pleasant  vision.  I  at  least  feel  confident  it  will 
be  realized.    However  that  election  may  result,  one 


THE  CIVIL  WAR  AND  CHASE  121 

tlimg  is  settled :  the  darling  wish  of  Taney's  last  day  is 
doomed  not  to  be  realized.  It  was  not  reserved  for 
him  to  put  the  veto  of  the  law  on  the  Proclamation  of 
Emancipation.  I  suppose  Chase  will  succeed  him,  and  I 
do  not  know  that  we  have  any  better  man.  If  he  does, 
he  will  have  a  great  future  before  him  in  the  moulding 
of  our  new  constitutional  law.**  Charles  Sumner  had 
already  written  to  Lincoln,  urging  the  importance  of 
having  the  war  measures  sustained  by  the  Court,  and 
saying  that  "from  this  time  forward  the  Constitution 
must  be  interpreted  for  liberty,  as  it  has  thus  far  for 
slavery."  ^  "There  is  an  opportunity  now  to  restore 
to  the  oflSce  the  high  character  given  it  by  Jay  and 
Marshall^  and  to  lay  a  cornerstone  of  regenerated  and 
reconstructed  Union,**  said  a  prominent  Republican 
organ;  and  another  expressed  the  hope  that  the  ap- 
pointment would  be  made,  not  in  payment  of  any, 
personal  or  political  debt,  but  as  "the  crowning  grace 
of  a  career  of  exalted  and  beneficent  public  service**; 
for,  it  said,  **  notoriously  the  Bench  of  the  Supreme 
Court  is  not  so  strong  as  it  was  forty  years  ago,  and 
emphatically  it  needs  to  be  reenf orced  and  elevated  in 
the  opinion  of  the  Nation.**  The  press,  in  general, 
assumed  that  Lincoln  would  appoint  Salmon  Portland 
Chase  of  Ohio,  who  had  resigned  as  Secretary  of  the 
Treasury,  in  the  preceding  June.  "The  country  ex- 
pects the  President  to  fulfil  the  wishes  of  the  people  by 
the  appointment  of  Chase,**  said  the  Independent.^ 
Chase  had,  moreover,  very  strong  supporters  in  his 

1  A  CycU  qf  Adams  LeUera  (19M),  letter  of  Oct.  15, 1864 ;  Sumner,  IV,  letter  to 
Francis  lieber,  Oct.  12,  1864 ;  the  DetroU  Free  Press,  Oct.  17,  1864,  said  that 
Taney's  death  has  been  '*  looked  for  with  anxiety  by  the  malignant  partisans  of  Mr. 
Lincoln.    One  of  their  schemes  has  been  to  abolitionize  the  Supreme  Court." 

>  CineinnaH  Oazdte,  Oct.  20, 1864;  New  York  Tribune,  Oct.  18, 1864;  Independ- 
ent, Oct.  30,  1864;  the  New  York  Herald,  on  the  other  hand,  said,  Oct.  16,  1864, 
that :  "  A  worse  selection  could  not  be  made.  The  position  requires  a  lawyer  of 
profound  attainments.  Chase  is  but  a  dabbler  in  legal  lore.  It  requires  a  man  of 
calm  judgment  and  unbiased  opinion.    Chase  is  a  partisan  I  *' 


122  THE  SUPREME  COURT 

Cabinet  colleague,  Edwin  M.  Stanton,  and  in  the  three 
prominent  Senators,  Wilson  and  Sumner  of  Massachu- 
setts and  William  P.  Fessenden  of  Maine.    The  Presi- 
dent, notwithstanding  his  many  differences  of  opinions 
with  his  "imperious  Secretary",  had  always  preserved 
a  high  and  unshaken  opinion  of  his  great  ability.     Long 
before  Taney's  death,  he  had  said :  "  Chase  is  about 
one  and  a  half  times  bigger  than  any  other  man  I  ever 
knew",  and  had  stated  that :  "There  is  not  one  man  in 
the  Union  who  would  make  as  good  a  Chief  Justice  as 
Chase ;  and,  if  I  have  the  opportunity,  I  will  make  him 
Chief  Justice  of  the  United  States."  ^    But  Lincoln  was 
uneasy  lest  Chase's  well-known  ambition  for  the  Presi- 
dency should  lead  him  to  mingle  politics  with  law,  if  he 
were  placed  upon  the  Bench.     To  Senator  Wilson,  who 
had  remarked  to  him  that  he  could  afford  to  overlook 
Chase's  harsh  words,  Lincoln  had  replied :   "  Oh,  as  to 
that,  I  care   nothing.  ...     I  have  only  one  doubt 
about  his  appointment.     He  is  a  man  of  unbounded 
ambition  and  has  been  working  all  his  life  to  become 
President.     That  he  can  never  be ;  and  I  fear  that  if  I 
make  him  Chief  Justice,  he  will  simply  become  more 
restless  and  uneasy,  and  neglect  the  place,  in  his  strife 
and  intrigue  to  make  himself  President.     If  I  were  sure 
that  he  would  go  on  the  Bench  and  give  up  his  aspira- 
tions and  do  nothing  but  make  himself  a  great  Judge, 
I  would  not  hesitate  a  moment."  ^    And  to  George  S. 
Boutwell,  Lincoln  said:    "There  are  three  reasons  in 
favor  of  his  appointment,  and  one  very  strong  reason 

^  Salmon  Portland  Chase  (1890),  by  Albert  Bushnell  Hart;  Abraham  Lincoln 
(1890),  by  John  C.  Nicolay  and  John  Hay,  IX. 

'  Abraham  Lincoln  (1890),  by  John  C.  Nicolay  and  John  Hay,  IX ;  Reminiacences 
of  Sixty  Years  in  Public  Affairs  (1902),  by  George  S.  Boutwell,  II,  29.  In  an  edi- 
torial in  the  Independent,  May  15,  1873,  on  Chase's  death,  it  is  said  that:  "Mr. 
Lincoln  hesitated  to  appoint  him,  only  because  as  he  said,  he  (Chase)  had  the  Presi- 
dential maggot  in  his  brain,  and  he  (lincoln)  never  knew  anybody  who  once  had  it 
to  get  rid  of  it." 


THE   CIVIL  WAR  AND  CHASE  123 

against  it.  First,  he  occupies  the  largest  place  in  the 
public  mind  in  connection  with  the  office;  then  we 
wish  for  a  Chief  Justice  who  will  sustain  what  has  been 
done  in  regard  to  emancipation  and  the  legal  tenders. 
We  cannot  ask  a  man  what  he  will  do,  and  if  we  should, 
and  he  should  answer  us,  we  should  despise  him  for 
it.  Therefore,  we  must  take  a  man  whose  opinions  are 
known.  But  there  is  one  very  strong  reason  against 
his  appointment.  He  is  a  candidate  for  the  Presidency 
and  if  he  does  not  give  up  that  idea,  it  will  be  very  bad 
for  him  and  very  bad  for  me.*'  Some  of  his  opponents 
urged  that  Chase  was  too  old ;  but  as  he  was  only  fifty- 
six,  while  at  the  time  of  their  respective  appointments, 
Taney  had  been  fifty-nine,  Rutledge  fifty-five  and  Ells- 
worth fifty,  there  was  little  force  in  this  criticism.  Other 
rival  candidates  of  legal  eminence  had  strong  advocates. 
Judge  Swayne,  then  on  the  Court,  was  extremely  de- 
sirous of  promotion,  and  was  vigorously  urged  by  Lin- 
coln's personal  friend  Judge  David  Davis,  and  by  the 
Postmaster-General,  Dennison.  Montgomery  Blair, 
the  former  Postmaster-General,  was  also  an  ardent 
candidate,  and  was  supported  by  the  Secretary  of  State, 
William  H.  Seward,  and  by  the  Secretary  of  the  Navy, 
Gideon  Welles.^  Chase  himself  believed  that  Edwin 
M.  Stanton  would  be  appointed.  There  was  a  sug- 
gestion of  the  promotion  of  Judge  Wayne,  and  Judge 
William  Strong  of  Pennsylvania  was  considered.*  The 
New  York  and  Massachusetts  Bars  were  supporting 

^  Chailes  Sumner  wrote,  Aug.  8,  1866:  "Montgomery  Blair  complained  to 
Seward  that  he  had  not  pushed  him  for  the  Chief  Justiceship  against  Chase.  Sew- 
ard said  that  he  had '  presented  his  papers  *  and  that  Blair  was '  his  candidate.'  Blair 
thought  that  if  Seward  had  been  mudh  in  earnest,  he  could  have  prevented  Chase's 
nomination.'*    Sumner,  IV. 

*  The  National  InMigencer,  Dec.  6,  1864,  quoted  a  Kentucky  paper  as  saying 
that  the  appointment  of  Wayne  would  be  "a  suitable  acknowledgment  of  his  pure 
patriotism  in  a  crisis  so  trying  to  his  allegiance  to  the  Constitution  and  Union  which 
so  many  other  distinguished  Southern  men  have  proved  unfaithful  to."  Amer. 
Law  Rev.  (1881),  XV,  ISO. 


124  THE  SUPREME  COURT 

William  M.  Evarts  of  New  York,  and  Chase,  himself, 
acknowledged  Evart's  qualifications,  writing  character- 
istically :  ''Evarts  is  a  man  of  sterling  abilities  and  ex- 
cellent learning,  and  a  much  greater  lawyer  than  I  ever 
pretended  to  be.  The  truth  is,  I  always  thought  my- 
self much  overestimated.  And  yet,  I  think  I  have 
more  judgment  than  Evarts,  and  that,  tried  by  the 
Marshall  standard  should  make  a  better  Judge,  while  he 
might,  tried  by  the  Story  standard."  Chase  himself 
had  long  been  anxious  to  obtain  the  appointment,  but 
he  was  unwilling  to  become  an  active  applicant;  and 
he  wrote  to  his  warmest  and  most  eflFective  supporter, 
Charles  Sumner  of  Massachusetts:  ''I  have  feared 
that  the  President  might  suppose  that  I  have  some 
agency  in  the  representations  which  reach  him  favor- 
able to  my  appointment.  If  he  has,  I  hope  you  will 
disadvise  him  of  the  impression.  I  would  not  have  the 
oflBce  on  the  terms  of  being  obliged  to  ask  for  it." 
Many  leading  Republicans,  however,  opposed  Chase, 
and  delegations  appeared  even  from  Ohio  in  protest 
against  him,  arguing  that  he  had  ardent  political  am- 
bition and  that  he  would  use  the  Bench  merely  as  a 
stepping-stone  to  the  Presidency,  and  that  he  was  not 
of  judicial  temper.^ 

While  the  President  postponed  acting  upon  the  ap- 
pointment until  a  month  after  the  close  of  the  Presi- 
dential campaign  in  November,  the  importance  of  the 
choice  to  be  made,  and  "the  duty  of  filling  the  Supreme 
Bench  with  a  man  who  shall  revive  Marshall"  was 
pointed  out  to  him  in  frequent  articles  in  the  press.  The 
Independent  said:    "That  Court  will  be  called  upon, 

^  The  New  York  World  and  New  York  Herald  opposed  Chase;  while  the  New 
York  Tribune  and  Independent  warmly  favored  him.  The  Independent,  Dec.  15, 
1868,  said  that  Thurlow  Weed  and  James  Grordon  Bennett  came  to  Washington  to 
consult  with  Montgomery  Blair  (Chase's  bitterest  foe)  to  see  if  the  nomination 
could  not  be  prevented. 


THE  CIVIL  WAR  AND  CHASE  125 

before  long,  to  deal  with  the  most  momentous  questions 
it  can  ever  handle  —  questions  involving  the  dearest 
rights  of  millions  of  human  beings,  the  sacred  honor  cf 
the  Government,  and  the  entire  future  of  the  Republic. 
If  the  next  Chief  Justice  of  the  United  States  should 
have  either  a  wrong  head  or  a  wrong  heart  —  if  he 
could  be  another  Taney  —  who  could  measure  the  far- 
reaching  extent  of  such  a  National  calamity?  There 
is  one  man  whose  appointment  will  fulfill  the  general 
expectation  —  Chase.  Will  the  President  hesitate  about 
his  duty  ?  We  believe  not."  ^  Writing  November  26, 
1864,  Gideon  Welles  described  the  situation  in  an  in- 
teresting manner,  though  in  his  estimate  of  Chase, 
allowance  must  be  made  for  Welles'  strong  personal 
prejudices :  * 

The  question  of  Chief  Justice  has  excited  much  remark 
and  caused  quite  a  movement  with  many.  Mr.  Chase  is 
expecting  it,  and  he  has  many  strong  friends  who  are  urging 
him.  But  I  have  not  much  idea  that  the  President  will 
appoint  him,  nor  is  it  advisable  he  should.  I  had  called  on 
the  President  on  the  2Srd  and  had  some  conversation,  after 
dispatching  a  little  business,  in  regard  to  this  appointment  of 
Chief  Justice.  He  said  there  was  a  great  pressure  and  a  good 
many  talked  of,  but  that  he  was  now  preparing  his  message 
and  did  not  intend  to  take  up  the  subject  of  Judge  before  the 
session  commenced.  *^ There  is,"  said  he,  **8l  tremendous 
pressure  just  now  for  Evarts  of  New  York,  who,  I  suppose, 
is  a  good  lawyer?"  This  he  put  inquiringly.  I  stated 
that  he  stood  among  the  foremost  at  the  New  York  Bar ; 
perhaps  no  one  was  more  prominent  as  a  lawyer.  ''But 
that, "  I  remarked,  "is  not  all.  Our  Chief  Justice  must  have 
a  judicial  mind,  be  upright,  of  strict  integrity,  not  too  pliant ; 
should  be  a  statesman  and  a  politician."  By  politician  I 
did  not  mean  a  partisan.  (I  said)  that  it  appeared  to  me  the 
occasion  should  be  improved  to  place  at  the  head  of  the 
Court  a  man,  not  a  partisan,  but  one  who  was  impressed 

1  Independent,  Nov.  24»  1864.  *  WMee,  U,  181-184, 187. 


126  THE  SUPREME  COURT 

with  the  principles  and  doctrines  which  had  brought  this 
Administration  into  power,  that  it  would  conduce  to  the 
public  welfare  and  his  own  comfort  to  have  harmony  between 
himself  and  the  judicial  department,  and  that  it  was  all- 
important  that  he  should  have  a  Judge  who  would  be  a 
correct  and  faithful  expositor  of  the  principles  of  his  Ad- 
ministration and  pohcy  after  his  Administration  shall  have 
closed.  I  stated  that  among  the  candidates  who  had  been 
named,  Mr.  Montgomery  Blair,  it  appeared  to  me,  best  con- 
formed to  those  requirements ;  that  the  President  knew  the 
man,  his  ability,  his  truthfulness,  honesty  and  courage. 

Welles  also  wrote  that  Postmaster-General  Den- 
nison  had  said  that  Chase  and  Lincoln  "'could 
not  assimilate,  and  that,  were  Chase  in  that  posi- 
tion—  a  life  tenure  —  he  would  exhibit  his  resent- 
ment against  the  President,  who,  he  thinks,  has 
prevented  his  upward  official  career.  .  .  .  He  never 
forgets  or  forgives  those  who  have  once  thwarted  him/' 
A  few  days  later,  Welles  wrote  that:  "Gov,  Morgan 
thinks  Chase  will  be  appointed  Chief  Justice,  but  I  do 
not  yet  arrive  at  that  conclusion.  The  President 
sometimes  does  strange  things,  but  this  would  be  a 
singular  mistake,  in  my  opinion,  for  one  who  is  so 
shrewd  and  honest  —  an  appointment  that  he  would 
soon  regret. '* 

Finally,  Lincoln  made  his  decision;  and  magnani- 
mously overlooking  all  personal  considerations  he 
elevated  Chase  to  the  Chief  Justiceship,  on  December 
6,  1864.  "It  took  Congress,  as  it  did  the  country, 
somewhat  by  surprise,"  wrote  a  Washington  corre- 
spondent, "because  the  President  had  so  conducted 
himself  within  a  fortnight  as  to  create  the  impression 
that  he  would  not  decide  the  matter  at  once.  Mr. 
Lincoln  is  a  humorous  man,  and  he  seems  to  have  en- 
joyed the  pleasant  surprise  of  Mr.  Chase's  friends 
and  the  confusion  of  his  enemies.     He  kept  his  secret 


THE  CIVIL  WAR  AND  CHASE  127 

well,  if  it  is  a  fact,  as  some  of  his  friends  claim,  that  he 
has  never  thought  of  appointing  any  one  else.  ...  A 
day  or  two  before  the  nomination  was  made  out,  Mr. 
Lincoln  said  to  a  very  intimate  friend :  *  Mr.  Chase*s 
enemies  have  been  appealing  to  the  lowest  and  meanest 
of  my  feelings.  They  report  ill-natured  remarks  of 
his  upon  me  and  my  Administration.  If  it  were  true 
that  he  made  them,  I  could  not  be  so  base  as  to  allow 
the  fact  to  influence  me  in  the  selection  of  a  man  for  the 
Chief  Justiceship.'  *'  No  better  illustration  of  Lincoln's 
high-mindedness  and  nobility  of  soul  can  be  found 
than  in  this  nomination;  for  as  Welles  wrote:  "The 
President  told  Chandler,  of  New  Hampshire,  who 
remonstrated  against  such  selection,  that  he  would 
rather  have  swallowed  his  buckhom  chair  than  to  have 
nominated  Chase."  That  Lincoln  evidently  did  not 
consult  his  Cabinet  as  to  this  important  appointment 
is  seen  from  another  entry  in  Welles'  diary,  on  Decem- 
ber 6:^ 

Shortly  after  leaving  the  Cabinet,  I  heard  that  Chase  had 
been  nominated  to,  and  confirmed  by,  the  Senate  as  Chief 
Justice.  Not  a  word  was  interchanged  in  the  Cabinet  re- 
specting it.  .  .  .  I  hope  the  selection  may  prove  a  good  one. 
I  would  not  have  advised  it,  because  I  have  apprehensions 
on  that  subject.  Chase  has  mental  power  and  resources, 
but  he  is  politically  ambitious  and  restless,  prone  to,  but  not 
very  skillful  in,  intrigues  and  subtle  management.  If  he 
appUes  himself  strictly  and  faithfully  to  his  duties,  he  may 
succeed  on  the  Bench,  although  his  mind,  I  fear,  is  not  so 
much  judicial  as  ministerial.  He  will  be  likely  to  use  the 
place  for  political  advancement,  and  thereby  endanger  con- 
fidence in  the  Court.  He,  though  selfish,  stubborn  some- 
times, wants  moral  courage  and  frankness,  is  fond  of  adula- 

1  WeUes,  U,  195-197,  Indej)endent,  Dec.  15,  1864.  A  letter  to  the  Cincinnati 
Gazette  said,  Dec.  6,  1864,  that  the  appointment  of  Chase  was  written  out  by 
Lincoln  in  his  own  hand ;  that  the  first  persons  informed  were  Senator  Sherman, 
and  Hugh  McCulloch ;  and  that  it  was  not  known  to  any  one  else,  even  to  the 
President's  Secretary,  until  it  was  aait  in  to  the  Senate. 


}u 


128  THE  SUPREME  COURT 

tion,  and  with  ofBcial  superiors  is  a  sycophant.     I  hope  the 
President  may  have  no  occasion  to  regret  his  selection. 

The  appointment  was  received  with  very  varied 
feelings  by  the  public.  On  December  15,  Welles 
wrote:  "Chase's  appointment  gives  satisfaction  to 
Sumner  and  a  few  others;  but  there  is  general  disap- 
pointment. Public  sentiment  had  settled  down  under 
the  conviction  that  he  could  not  have  the  position. 
Sumner  helped  to  secure  it  for  him.  •  •  •  Sumner 
declares  to  me  that  Chase  will  retire  from  the  field  of 
politics  and  not  be  a  candidate  for  the  Presidency.  I 
questioned  it,  but  Sumner  said  with  emphasis  it  was 
so.  He  had  assured  the  President  that  Chase  would 
retire  from  party  politics.  I  have  no  doubt  Sumner 
believes  it.  What  foundations  he  has  for  the  belief, 
I  know  not,  though  he  speaks  positively  and  as  if  he 
had  assurance.  My  own  convictions  are  that,  if  he 
lives,  Chase  will  be  a  candidate  and  his  restless  and 
ambitious  mind  is  already  at  work.  It  is  his  nature.'' 
By  the  press  of  the  country,  in  general,  the  appoint- 
ment met  with  approbation.^  "The  eminent  qualifi- 
cations which  Mr.  Chase  brings  to  this  exalted  position 
will  be  recognized  by  all  citizens  without  distinction  of 
party,  among  whom  purity  of  character  in  combina-- 
tion  with  distinguished  intellectual  endowments  are 
held  in  honor,"  said  the  National  Intelligencer.  Even 
the  Democratic  New  York  World  said  that  the  appoint- 
ment "will  be  generally  endorsed  by  the  public  opinion 
of  the  country  as  the  most  suitable  that  could  have 
been  made."    The  Boston  Advertiser  commented  with 

• 

^  WathingUm  Star,  Dec.  7, 1804 :  "The  nomination  will  itrike  the  countiy  gener- 
ally as  one  eminently  fit  to  be  made."  Philadelphia  Press,  Dec.  8,  1864 ;  Boston 
Daily  Advertiser,  Dec.  8,  1864 ;  New  York  World,  Dec.  7,  1864.  The  New  York 
Evening  Post,Dec.  9, 190^,  termed  him  "cahn»  deliberate,  just  .  .  .  long  intimately 
acquainted  with  the  whole  dass  of  subjects  which  are  likely  to  engage  in  the  coming 
time  the  attention  of  the  Court." 


THE  CIVIL  WAR  AND  CHASE  129 

much  fairness  as  follows:  ^' Enemy  as  well  as  friend 
has  admitted  his  dignity  and  force  of  character,  his 
intellectual  power  and  grasp,  and  the  immoveable 
strength  of  his  convictions  of  right.  .  •  .  It  was  urged 
by  many,  and  with  some  force,  while  this  appointment 
was  still  in  doubt,  that  in  filling  such  a  place,  the  Presi- 
dent's choice  should  properly  fall  upon  some  man  of 
legal  eminence,  rather  than  anybody  whose  name  had 
long  been  connected  with  politics,  and  that  by  such  a 
course,  Mr.  Lincoln  might  do  something  towards  rais- 
ing the  Supreme  Judicial  tribunal  of  the  Nation  above 
the  embittered  discussion  of  the  past  few  years,  and 
give  it  something  like  its  former  hold  upon  the  confi- 
dence of  men  of  all  parties.  Mr.  Lincoln,  however, 
in  making  this  appointment  from  political  life  rather 
than  with  reference  to  professional  distinction  alone, 
has  followed  a  long  line  of  precedents  on  both  sides  of 
the  water.  .  .  .  Jay,  Ellsworth,  Marshall  and  Taney  . . . 
were  aU  men  whose  political  career  had  given  them  a 
position  and  rank  which  mere  preeminence  at  the  Bar 
seldom  brings.  Mr.  Lincoln,  like  former  Presidents, 
preferred  to  call  to  that  station  a  statesman  who  has 
already  secured  the  attention  and  respect,  if  not  the 
friendship,  of  the  whole  country,  trusting,  as  they  did 
with  such  eminent  success,  that  the  judicial  capacity 
and  high  merit  of  the  man  would,  in  the  sequel,  secure 
besides  these  advantages,  the  confidence  of  all  classes 
and  parties." 

There  were  some  who,  as  stated  in  the  foregoing 
editorial,  were  apprehensive  of  the  appointment  as 
savoring  too  much  of  politics,  and  who  feared  that 
Chase's  absence  from  the  Bar  since  1850  and  his  serv- 
ice in  the  Senate  and  in  the  Cabinet  had  withdrawn 
him  from  legal  pursuits,  and  had  rendered  him  less 
able  to  cope  with  the  modem  developments  of  the  law, 
VOL.  in — 5 


ISO  THE  SUPREME  COURT 

Some  also  believed  that  he  would  find  it  difficult  to  dis- 
associate his  opinions  from  political  considerations,  in 
view  of  the  fact  that  many  questions  on  which  he  must 
now  pass  had  been  before  him  when  in  Executive  office. 
"I  dined  with  him/'  wrote  Hugh  McCulloch,  "a 
couple  of  weeks  after  the  coveted  honor  had  been 
conferred  upon  him,  and  I  was  pained  by  discovering 
that  he  was  far  from  being  satisfied.  •  •  •  High  as  the 
position  was,  it  was  not  the  one  to  which  he  had  really 
aspired.  To  him  it  seemed  like  retirement  from  public 
life." ' 

Few  of  the  forebodings  of  his  opponents  were  justi- 
fied, and  the  prediction  that  politics  would  influence 
his  decisions  proved  especially  false.  For  though 
with  this  appointment.  President  Lincoln  had  practi- 
cally reconstituted  the  Supreme  Court  as  it  existed  prior 
to  the  war  (five  of  the  members  being  his  appointees 
—  Swayne,  Miller,  Davis,  Field  and  Chase,  —  and  these 
five  becoming  a  majority  of  the  Court  on  the  death  of 
Judge  Catron,  six  months  later),  nevertheless,  those 
politicians  who  hoped  for  a  partisan  administration  of 
justice  by  the  Court  with  its  new  Judges  were  disap- 
pointed. Again  it  was  shown  to  the  American  people 
that  even  in  time  of  stress,  the  men  who  ascended 
the  Supreme  Bench,  dropped  their  "politics  when  they 
assumed  the  black  robes."  And  again  it  was  found, 
as  has  been  well  said  by  Chase's  biographer,  that,  pre- 
cisely as  the  Republican  appointees  of  Jefferson  and 
Madison  had  failed  to  conform  to  the  Presidential 
hopes  that  they  would  modify  the  Federalism  of  the 

1  Men  and  Meamres  qf  Half  a  Century  (1888)»  by  Hugh  McCullodi,  186-187; 
John  Shennan  in  hb  RecoUecHane  qf  Forty  Years  (1895),  11,  340,  states  that  in  Sep- 
tember, 1804,  Chase  was  his  guest  for  a  day  or  two ;  "  He  was  evidently  restless  and 
uneasy  as  to  his  future.  I  spoke  to  him  about  the  position  of  Chief  Justice.  .  .  . 
He  said  it  was  a  position  of  eminence  that  ought  to  satisfy  the  ambitions  of  any* 
one  but  for  which  few  men  were  fitted." 


THE  CIVIL  WAR  AND  CHASE  ISl 

Court  under  Washington  and  Adams,  so  now,  the  re- 
constituted Court,  "inherited  the  spirit  of  its  predeces- 
sors; it  continued  to  hold  fast  to  its  time-honored 
principles  on  public  law  and  private  rights,  rather  than 
to  set  up  a  new  regime;  and  Chase's  influence  bore 
for  caution  and  restraint,  and  not  for  radical  changes." 
His  own  view  of  the  necessity  of  eliminating  all  political 
considerations  was  set  forth  in  a  letter  during  the 
Johnson  impeachment  proceedings,  when  he  wrote  that 
he  wished  his  name  permanently  disconnected  from  the 
Presidency:  "I  must  dismiss  every  thought  which 
might  incline  the  scale  of  judgment  either  way.  Do 
what  I  may,  I  cannot  hope  to  escape  imputations.  I 
only  hope  to  avoid  giving  any  just  occasion  for  them. 
The  rest  I  leave  cheerfully  to  Him  who  alone  judgeth 
righteously."  ^ 

It  must  be  admitted,  however,  that,  in  spite  of  the 
expression  contained  in  this  letter.  Chase  retained  his 
ambition  to  succeed  to  the  Presidency,  and  he  was 
undoubtedly  desirous  of  receiving  the  nomination  both 
in  1868  and  in  1872.  While  this  ambition  never  influ- 
enced his  judicial  decisions,  it  seriously  impaired  the 
popular  confidence  in  his  impartiality  and  weakened 
the  eflFect  of  some  of  his  opinions.  There  was  one 
further  obstacle  to  his  complete  eminence  in  his  posi- 
tion, which  was  referred  to  by  Hugh  McCuUoch :  "He 
had  not  been  in  the  active  practice  of  the  law  for  twenty 
years,  nor  had  he  been  able  during  that  period  to  devote 
any  time  to  legal  studies.  ...  So  that  when  he  went 
upon  the  Bench,  he  was  unfamiliar  with  the  work  which 
he  was  called  upon  to  perform.  •  .  •  He  did  have  to 
work  much  harder  in  the  investigation  of  legal  questions, 

^  PrvoaU  lAJe  and  Public  Semcet  of  Salmon  Portland  Chase  (1874),  by  Robert 
B.  Warden,  letteri  of  March  2»  10, 1808;  Salmon  Portland  Chase  (1899),  by  Albert 
BiuhneQ  Hart 


182  THE  SUPREME  COURT 

and  in  the  preparation  of  opinions,  than  any  of  his 
Associates.'*  Though  he  gradually  developed  great 
legal  capacities  as  a  Judge,  Chase's  own  modest  atti- 
tude towards  his  qualifications  was  strikingly  expressed 
in  a  letter  written  three  years  after  his  appointment: 
**  I  never  expected  great  success  in  any  position  I  have 
occupied.  My  surprise  at  the  degree  of  it  that  I  have 
achieved  has  been  greater,  perhaps  than  any  other 
man's.  And  now  I  still  less  hope  for  much  success 
as  a  Judge.  I  came  to  the  Bench  too  late  and  from 
too  active  pursuits  to  think  of  emulating  any  of  my 
great  predecessors.  It  will  suffice  if  the  duties  of  my 
position  are  performed  according  to  the  measure  of 
my  abiUty  and  circumstances." 

On  Thursday,  December  15,  1864,  at  eleven  in  the 
morning,  Chief  Justice  Chase  took  his  seat  on  the  Bench. 
"The  scene  was  one  to  be  remembered  for  a  lifetime,  yet 
it  was  of  the  simplest  character,"  wrote  a  Washington 
correspondent.  "There  was  a  crowd  of  spectators 
present;  but  next  to  Mr.  Chase,  one  man,  himself  a 
spectator,  was  the  most  interesting  figure  in  the  group  of 
celebrated  persons  there.  It  was  Charles  Sumner.  He 
stood  leaning  against  one  of  the  composite  pillars  at  the 
right  of  the  Justices,  evidently  agitated  by  the  reflec- 
tions suggested  by  the  scene.  It  was  in  that  very 
chamber,  and  the  Senator  looked  down  upon  the  spot, 
where  Brooks  made  his  murderous  assault  upon  him 
but  a  few  years  ago ;  and  now  what  a  change !  An 
abolitionist,  and  one  glorying  in  the  name,  is  Chief 
Justice ;  while  of  all  the  bloody  men  who  participated 
in  the  intended  murder  (either  actively  or  passively) 
scarcely  one  is  alive;  and  the  two  or  three  who  are, 
have  sunk  to  obscurity.  This  is  the  revenge  that  time 
brings  to  the  virtuous.  When  I  saw  Mr.  Chase  stand 
there  in  the  highest  place  upon  that  Bench,  already 


I 

3 

h 
il 

II 

"  s' 


,  V 


THE  CIVIL  WAR  AND  CHASE  133 

honoring  it  by  his  majestic  presence,  I  was  satisfied  that 
Providence  had  ordered  events  more  wisely  than  men 
could  have  done,  in  making  Abraham  Lincoln  Presi- 
dent, and  Salmon  P.  Chase,  Chief  Justice." 

On  February  1,  1865,  six  weeks  after  the  new  Chief 
Justice  took  his  seat,  an  event  occurred  in  the  Court 
which  must  have  stirred  his  soul  to  its  depths,  when  he 
reflected  on  the  long  years  during  which  he  had  struggled 
in  behalf  of  the  negro ;  for  on  that  day,  the  first  negro 
lawyer  —  John  S.  Rock  of  Massachusetts  —  was  ad- 
mitted to  practice  before  the  bar  of  the  Court.  The 
dramatic  event  was  thus  described  by  an  earnest  anti- 
slavery  man:^  "The  black  man  was  admitted.  Jet 
black,  with  hair  of  an  extra  twist  —  let  me  have  the 
pleasure  of  saying,  by  purpose  and  premeditation,  of  an 
aggravating  *kink'  —  unqualifiedly,  obtrusively,  de- 
fiantly *  Nigger '  —  with  no  palliation  of  complexion, 
no  let-down  in  lip,  no  compromise  in  nose,  no  abatement 
whatever  in  any  facial,  cranial,  osteological  particular 
from  the  despised  standard  of  humanity  brutally  set  up 
in  our  politics  and  in  our  Judicatory  by  the  Dred  Scott 
decision  —  this  inky-hued  African  stood,  in  the  mon- 
archical power  of  recognized  American  Manhood  and 
American  Citizenship,  within  the  bar  of  the  Court  which 
had  solemnly  pronounced  that  black  men  had  no  rights 
which  white  men  were  bound  to  respect ;  stood  there  a 
recognized  member  of  it,  professionally  the  brother  of 
the  distinguished  counsellors  on  its  long-rolls,  in  rights 
their  equal,  in  the  standing  which  rank  gives  their  peer. 
By  Jupiter,  the  sight  was  grand !  'Twas  dramatic,  too. 
At  three  minutes  before  eleven  o'clock  in  the  morning, 
Charles  Sumner  entered  the  Court-room,  followed  by 

^  Independent,  Dec.  22,  1864,  Feb.  9, 1865,  quotiDg  New  York  Tribune,  Gideon 
Welles  wrote  in  his  diary,  Feb.  8, 1865 :  '*  A  negro  lawyer  has  been  presented  by  him 
(Sumner)  to  practice  in  the  Supreme  Court  and  extra  demonstrations  of  that  land 
have  been  made  by  him  and  Chief  Justice  Chase.*' 


134  THE  SUPREME  COURT 

the  negro  applicant  for  admission,  and  sat  down 
within  the  Bar.  At  eleven,  the  procession  of  gowned 
Judges  entered  the  room,  with  Chief  Justice  Chase  at 
their  head.  The  spectators  and  the  lawyers  in  attend- 
ance rose  respectfully  on  their  coming.  The  Associate 
Justices  seated  themselves  nearly  at  once,  as  is  their 
courteous  custom  of  waiting  upon  each  other's  move- 
ments. The  Chief  Justice,  standing  to  the  last,  bowed 
with  affable  dignity  to  the  Bar,  and  took  his  central 
seat  with  a  great  presence.  Immediately  the  Senator 
from  Massachusetts  arose,  and  in  composed  manner 
and  quiet  tone  said :  *  May  it  please  the  Court,  I  move 
that  John  S.  Rock,  a  member  of  the  Supreme  Court  of 
the  State  of  Massachusetts,  be  admitted  to  practice 
as  a  member  of  this  Court.'  The  grave  to  bury  the 
Dred  Scott  decision  was  in  that  one  sentence  dug;  and 
it  yawned  there,  wide  open,  under  the  very  eyes  of 
some  of  the  Judges  who  had  participated  in  the  judicial 
crime  against  Democracy  and  humanity.  The  assent- 
ing nod  of  the  great  head  of  the  Chief  Justice  tumbled 
in  the  corse  and  filled  up  the  pit,  and  the  black  counselor 
of  the  Supreme  Court  got  on  to  it  and  stamped  it 
down  and  smoothed  the  earth  to  his  walk  to  the  rolls  of 
the  Court."  It  is  a  noteworthy  fact  that  the  status 
of  the  negro,  even  at  that  date,  had  continued  so  un- 
settled, that  the  new  member  of  the  Supreme  Court 
Bar  was  obliged,  after  his  admission,  to  go  to  the  Pro- 
vost Marshal  to  obtain  a  permit,  before  he  could  return 
to  Massachusetts  —  no  negroes  being  then  allowed  to 
leave  Washington  without  a  license  from  the  military 
authority. 

Within  a  year  after  Chase's  accession,  his  progress 
in  his  judicial  oflSce  was  described  in  a  letter  from  Wash- 
ington as  follows :  ^    "  The  Chief  Justice  is  hale  and 

^  Independent,  Much  29, 1866. 


THE  CIVIL  WAR  AND  CHASE  135 

hard  at  work,  busy  in  downright  earnest  with  his  grave 
duties.  Rising  early,  he  attacks  his  books,  examines  his 
briefs,  ponders  his  points  of  law  and  often  before  break- 
fast has  done  a  fair  day's  work.  Mr.  Chase  has  sig- 
nally realized  his  early  ambition  to  attain  to  the  one 
official  position,  which  I  know  him  to  regard  as  the 
loftiest  in  our  American  system  of  government.  During 
the  few  months  inmiediately  after  his  appointment,  he 
found  the  studious  and  meditative  life  of  the  Judge  so 
great  a  contrast  to  the  exciting  labors  of  a  cabinet  min- 
ister, that  a  man  of  his  executive  genius  could  not  but 
feel  a  temporary  irksomeness,  as  from  a  loss  of  custom- 
ary muscular  exercise.  His  shoidders  at  first  did  not  feel 
weight  enough  in  his  gown.  But  he  soon  brought  his 
faculties  into  such  harmony  with  his  office  that  he  now 
takes  up  each  new  case,  with  a  freshness  of  spirit  that 
shows  how  a  total  change  in  one's  intellectual  habits 
in  mature  years  may  prove  one  of  the  best  methods  of 
keeping  an  elderly  gentleman  from  growing  old." 

In  view  of  the  tremendous  number  of  cases  arising 
out  of  the  war,  during  the  ten  years  following  the  ap- 
pointment of  Chase  as  Chief  Justice,  it  was  of  inesti* 
mable  value  to  the  country  to  have  at  the  head  of  the 
Court  not  only  a  great  lawyer,  but  a  great  statesman 
who  had  served  both  in  Congress  and  in  the  Cabinet, 
and  who  was  thoroughly  and  practically  familiar  with 
the  business  administration  and  economic  and  military 
problems  of  the  Government.  As  had  been  predicted 
on  his  appointment.  Chase  brought  "to  the  compli- 
cated and  embarrassing  questions  growing  out  of  the 
war  and  the  subsequent  reconciliation  of  divided  sections 
...  a  large  wisdom,  a  discerning  but  impartial  judg- 
ment, and  the  sincerest  patriotism,  a  love  for  the  whole 
Nation  and  for  all  its  parts,  and  a  resolute  will  that 
neither  an  overgrown  centralization  of  power  in  the 


186  THE  SUPREME  COURT 

Federal  head,  nor  an  anarchical  claim  of  absolute 
sovereignty  in  the  component  States  shall  vitiate  and 
defeat"  the  long-established  system  of  American 
government.^  With  such  a  man  at  its  head,  and  in 
view  of  the  conditions  of  the  times,  it  was  but  natural 
that,  for  the  first  six  years  after  his  accession  to  the 
Bench,  the  trend  of  the  Court's  decisions  should  be 
distinctly  Nationalistic  in  character,  sustaining  the 
powers  of  the  Government  to  the  fullest  extent.  The 
first  important  task  which  fell  to  Chase's  lot  was  the 
development  of  the  American  prize  law,  in  a  series 
of  about  thirty  noted  cases.  As  early  as  January  30, 
1865,  in  The  Circassian,  2  Wall.  135,*  and  in  the  more 
famous  cases  of  the  Bermuda,  the  Springbok  and  the 
Peterhqff  in  the  two  succeeding  years,  the  Court  es- 
tablished the  famous  doctrine  of  "continuous  voyage" 
and  "ulterior  destination.'*  In  the  Bank  Tax  Cases^ 
i  Wall.  200,  in  1865,  and  in  a  long  series  of  cases  later, 
the  Court  was  required  to  consider  the  constitutionality 
of  the  great  National  banking  system  and  the  validity  of 
the  numerous  State  statutes  which  sought  to  tax  the 
notes  and  operations  of  the  National  banks  and  the  cap- 
ital of  State  banks  invested  in  United  States  Govern- 
ment stock  or  bonds.  In  all  these  cases,  the  Court  con- 
sistently held  that  investments  in  Government  securities 
could  not  be  taxed  by  the  States,  and  that  shares  in  the 
National  banks  could  only  be  taxed  by  permission  of 
Congress  —  such  National  banks  being  an  agency  of  the 
National  Government  whose  operation  could  not  le- 
gally be  impeded  by  State  action.' 

1  New  York  Eoming  PoH,  Dec.  8, 1864. 

'  See  especially  as  to  this  case  an  editorial  in  the  New  York  World,  March  17, 1868. 

*See  also  Bank  of  Commerce  v.  Commisnoner,  i  Black,  620;  Bank  Tax  Cases, 
ft  Wall.  200;  Van  Allen  v.  Assessors,  8  Wall.  578;  Society  for  Savings  ▼.  Coite,  6 
Wall.  694;  Provident  Institution  for  Savings  v.  Massachusetts,  6  Wall.  611 ;  Bank  v. 
The  Supervisors,  7  Wall.  26 ;  Austin  v.  The  Aldermen,  7  Wall.  694 ;  National  Bank 
▼.  Commonwealth,  9  Wall.  S5S ;  Lionberger  v.  Rouse,  9  Wall.  468. 


THE  CIVIL  WAR  AND  CHASE  187 

In  1866,  the  Court  enhanced  the  National  power  by 
an  important  decision  in  The  Moses  Taylor  and  in 
The  Hine  v.  Trevor^  4  Wall.  411, 555.  In  these  cases,  it 
was  held  for  the  first  time  that  the  grant  of  admiralty 
jurisdiction  to  the  District  Courts  by  the  Judiciary  Act 
of  1789  was  exclusive,  and  that  State  laws  conferring 
remedies  in  rem  coidd  only  be  enforced  in  these  Courts. 
The  residt  of  the  decision  was  to  deprive  the  State 
Courts,  especially  in  the  West,  of  an  immense  class  of 
cases  relating  to  maritime  contracts,  collisions  and  other 
torts,  over  which  they  had  hitherto  exercised  jurisdiction. 

In  1867,  another  phase  of  the  development  of  the 
principle  that  a  State  might  not  impede  or  embarrass 
the  Government  or  impair  the  rights  of  the  United 
States'  citizens  under  the  Constitution  was  presented 
by  the  decision  in  CrandaU  v.  Nevada^  6  Wall.  35,  in 
which  a  tax  imposed  by  the  State  of  Nevada  upon  every 
person  leaving  the  State  by  railroad  or  stage  coach  or 
vehicle  transporting  for  hire,  was  held  invalid.  It  was 
declared  that  all  citizens  had  a  right  to  pass  from  State 
to  State  and  to  come  to  the  seat  of  the  Government,  and 
that  "this  right  is  in  its  nature  independent  of  the  will 
of  any  State  over  whose  soil  he  must  pass  in  the  exer- 
cise of  it."  That  the  Court  had  not  yet  fully  realized 
the  broad  scope  of  the  Commerce  Clause  of  the  Consti- 
tution was  illustrated  in  this  case  by  the  fact  that  it 
refused  to  hold  the  statute  invalid  under  that  Clause ; 
and  it  stated  that  "the  tax  does  not  itself  institute  any 
regulation  of  commerce  of  a  National  character  or  which 
has  a  uniform  operation  over  the  whole  country."  ^ 

1  Four  yean  later,  in  1871,  in  Ward  ▼.  Maryland,  12  Wall.  418,  the  Court  held  a 
State  tax  diacriminating  against  non-resident  traders  invalid,  as  repugnant  to  the 
provision  of  the  Constitution  guaranteeing  State  citizens  all  the  privileges  and  im- 
munities of  citizens  in  the  several  States;  but  here  again  it  found  it  unnecessary  to 
decide  whether  the  tax  infringed  on  the  right  of  Congress  to  regulate  interstate 
commerce.  See  also  Woodmff  v.  Parkam,  8  Wall.  128 ;  Hinson  v.  LoU,  8  Wall.  148» 
in  1809;  and  United  States  v.  Wheeler,  854  U.  S.  281  in  1920. 


188  THE  SUPREME  COURT 

Other  than  these  decisions  on.  National  supremacy, 
the  Court's  chief  work,  in  1867  and  the  immediately  en- 
suing years,  in  connection  with  the  war  was  the  settle- 
ment of  the  legal  eflFect  of  the  existence  of  a  state  of 
war  upon  business  conditions.  Its  effect  upon  the 
running  of  the  statute  of  limitations  was  considered  in 
Hanger  v.  Abbott^  6  Wall.  532,  and  on  contracts  and 
trading  with  or  for  the  enemy  and  on  debts  to  an 
enemy  in  Hall  v.  Coppell^  7  Wall.  542.  The  important 
financial  and  tax  legislation  of  the  war  was  upheld  in 
Pacific  Insurance  Company  v.  Soulcy  7  Wall.  433,  in 
which  the  nature  of  a  "direct  tax"  under  the  Constitu- 
tion was  carefully  elucidated  in  connection  with  the 
internal  revenue  laws.*  The  general  power  of  the 
Government  to  expropriate  property  other  than  enemy 
property,  in  time  of  war  and  immediate  public  exigency, 
and  the  validity  of  the  statutes  which  provided  for  the 
disposition  of  captured  and  abandoned  cotton  and  for 
its  sale  and  deposit  of  proceeds  in  the  United  States 
Treasury  to  meet  the  claims  of  any  owners  who  could 
prove  they  had  not  adhered  to  the  cause  of  the  enemy 
were  upheld,  in  1871,  in  the  noted  case  of  United  States 
V.  Russell^  13  Wall.  623,  and  in  about  twenty  cases 
during  the  succeeding  fifteen  years.*  Another  series 
of  about  thirty  cases  (decided  over  a  period  of  twelve 
years)  involved  the  statutes  enacted  for  the  confiscation 
and  conservation  of  enemy  property,  the  constitution- 

^  In  Bennett  v.  Hunter,  9  Wall.  S26,  there  was  invc^ved  the  first  instance,  since  the 
early  years  of  the  Republic,  of  the  imposition  by  Congress  of  a  direct  tax  on  land 
apportioned  among  the  States. 

*  Act  of  March  12,  1863,  and  Act  of  July  2,  1864.  See  The  ConetUuHon  and  the 
War  Power  —  War  Claims  against  the  United  States,  by  William  Lawrence,  Amer, 
Law  Reg.  (IS74-76),  n.  b.  Xm,  XIV;  The  ROfMion,  by  R.  McPhail  Smith,  Sottih- 
em  Law  Rev.  (1878-74),  U,  m ;  The  LaU  Civil  War  and  iU  Efect  on  Ciml  Remedies, 
by  William  A.  Maury,  Amer,  Law  Reg,  (1875),  n.  b.  XIV ;  Constitutional  Founda- 
tion oj  War  Claims  for  Property,  by  William  B.  King,  Am^.  Law  Reg.  (1881), 
N.  B.  XX ;  Some  Legcd  Aspects  of  the  Confiscation  Acts  o/  the  Civil  War,  by  James  G. 
Randall,  Amer,  Hist.  Rev.  (1912),  XVII ;  Captured  and  Abandoned  Property  during 
the  CivU  War,  ibid,  (1918),  XIX. 


THE  CIVIL  WAR  AND  CHASE  139 

ality  of  which  were  upheld  in  another  notable  opinion, 
in  1871,  Miller  v.  United  States,  11  Wall.  268.»  The 
legal  status  of  the  Confederate  States  and  of  their 
legislation  during  the  war  was  settled  by  the  Court,  as 
early  as  1870,  in  Hickman  v.  Jones,  9  Wall.  197,  in  which 
it  held  the  Confederate  Government  to  be  "simply  an 
armed  resistance  to  the  rightful  authority  of  the  sov- 
ereign '* ;  and  all  its  acts  were  held  invalid  so  far  as  they 
were  in  aid  of  the  rebellion.  While  the  more  radical 
Republican  leaders  were  insistent  that  all  legislation  of 
every  kind  enacted  by  the  various  States  of  the  Con- 
federacy were  illegal  and  void,  the  Court  took  a  more 
conservative  and  rational  view ;  and  in  Horn  v.  Lock- 
hart,  17  Wall.  570,  in  1873,  it  decided  that  the  acts 
of  the  several  Confederate  States  "so  far  as  they  did 
not  impair  or  tend  to  impair  the  supremacy  of  the 
National  authority  or  the  just  rights  of  citizens  under 
the  Constitution,  are,  in  general,  to  be  treated  as  valid 
and  binding.  The  existence  of  a  state  of  insurrection 
and  war  did  not  loosen  the  bonds  of  society  or  do  away 
with  civil  government."  * 

1  Act  of  July  18, 1861 ;  Act  of  August  6,  1861 ;  Act  of  July  17,  1862 ;  see  espe- 
cially McVeigh  v.  Uniied  States,  11  Wall.  259,  in  which  the  right  even  of  an  enemy 
to  be  heard  in  proceedings  under  the  confiscation  laws  was  upheld ;  and  for  the 
facts  of  this  very  extraordinary  cause,  see  New  York  Herald,  April  28,  May  7, 1878. 

*  In  Keith  v.  Clark,  97  U.  S.  454,  it  held  that  legislation  by  a  Confederate  State  not 
in  aid  of  the  rebellion  was  valid.  "The  State  remained  a  State  of  the  Union.  She 
never  escaped  the  obligations  of  that  Constitution,  though  for  a  while  she  may  have 
evaded  their  enforcement."  In  Lamar  v.  Micou,  112  U.  S.  452,  in  1884,  it  was  held 
that  investment  by  a  guardian  in  bonds  of  the  Confederate  States  "was  clearly 
unlawful,  and  no  legislative  act  or  judicial  decree  or  decision  of  any  State  could  jus- 
tify it.  The  so-called  Confederate  government  was  in  no  sense  a  lawful  govern- 
ment but  was  a  mere  government  of  force,  having  its  origin  and  foundation  in 
rebellion  against  the  United  States*',  and  its  bonds  had  no  legal  value  as  money 
or  property,  except  by  agreement  or  acceptance  by  parties  capable  of  contracting. 


CHAPTER  TWENTY-NINE 

THE  MILLIGAN  CASE 
1866-1867 

Ai/THOUGH,  from  1861  to  1870,  the  Court  had  con- 
sistently upheld  the  authority  of  the  National  Gov- 
ernment, had  widened  the  scope  of  jurisdiction  of  the 
Judiciary  of  the  United  States  and  had  strictly  limited 
the  sovereignty  of  the  States  whenever  they  appeared 
to  trespass  on  the  National  domain,  it  was  destined 
to  become  the  object  of  the  most  serious  and  deter- 
mined attack  by  the  very  political  party  which  fa- 
vored such  extension  of  National  power. 

The  death  of  President  Lincoln  occurred  on  April 
14,  1865,  at  the  close  of  the  December,  1864,  Term ; 
and  with  that  Term,  there  ended  a  period  of  five  years 
during  which  the  Court  had  been  absolutely  free  from 
the  partisan  criticism  prevalent  during  the  decade 
from  1850  to  1860.  In  1866,  however,  political  at- 
tack was  renewed  in  a  most  violent  form,  as  the  Court 
became  gradually  involved  in  the  fierce  conflict  then 
ensuing  between  President  Johnson  and  the  Con- 
gress over  Reconstruction  policies.  The  Republican 
opponents  of  the  President  were  determined  to  abol- 
ish the  military  and  civil  State  Governments  in  the 
South,  instituted  by  Johnson  under  his  Executive 
authority.  They  were  insistent  upon  the  estabhsh- 
ment  of  a  purely  military  control  by  legislative  enact- 
ment, imtil  the  States  should  be  reorganized  and  ad- 


THE  MILLIGAN  CASE  141 

mitted  back  into  the  Union  upon  acceptance  of  such 
conditions    as    Congress    should    choose    to    impose. 
But,  while  confident  of  their  power  to  prevail  over  the 
President's  antagonism  to  their  measures,  the  radi- 
cal Republicans  were  apprehensive  as  to  the  attitude 
of  the  Court.    Since  no  one  of  the  forms  of  Govern- 
ment for  the  South  proposed  by  them  had  any  ex- 
press constitutional  sanction,  and  since  it  was  openly 
stated  by  the  President  and  his  supporters  that  the 
validity  of  any  such  legislation  woidd  be  challenged, 
it  was  evident  that  the  Court  might  become  the  final 
arbiter  of  the  situation ;  and  in  such  event,  the  Radi- 
cal Republicans  were  very  doubtful  as  to  the  views 
of  the  Chief  Justice.    It  was  reported  in  the  press 
that  he   did  not  approve  their  course  in  Congress; 
and  it  was  well  known  that  President  Lincoln  him- 
self had  expressed  some  fear  lest  Chase  on  the  Bench 
might  not  support  his  war  policies.     *' Lincoln  hesi- 
tated,"   wrote    Hugh   McCulloch,    "for    some    days, 
while  the  matter  was  under  consideration,  to  send 
his  name  to  the  Senate,  under  the  apprehension  that 
he  might  be  somewhat  rigorous  in  his  judgment  of 
some  of  the  Executive  acts,  and  especially  those  of 
the  Secretary  of  War,  if  suit  should  be  brought  in- 
volving questions  that  could  only  be  settled  by  the 
Supreme   Court.    Knowing   that   my   relations   with 
Mr.  Chase  were  intimate,  he  sent  for  me  one  day,  and 
after  explaining  the  nature  of  his  fears,  asked  me  what 
I  thought  about  them.     *Why,  Mr.  President,'  I  re- 
plied, *you  have  no  reason  for  fears  on  that  score. 
Mr.  Chase  is  in  the  same  box  with  yourself  and  Mr. 
Stanton.     He  favored  and  advised,  as  he  himself  has 
informed  me,  the  dispersion  by  force  of  the  Mary- 
land Legislature,  and  if  anything  more  illegal  than  that 
would  have  been  has  been  done,  I  have  not  heard  of 


142  THE  SUPREME  COURT 

it/"^  Shortly  before  Lincoln's  death,  and  less  than 
three  months  after  the  appointment  of  the  new  Chief 
Justice,  it  appears  that  he  had  received  further  intima- 
tions that  Chase's  views  as  to  the  legality  of  military 
trials  would  be  adverse  to  the  Administration,  for 
his  Secretary  of  the  Navy,  Gideon  Welles,  wrote  in 
his  diary : 

Feb.  21,  1865.  I  found  the  President  and  Attorney- 
General  Speed  in  consultation  over  an  apprehended  deci- 
sion of  Chief  Justice  Chase,  whenever  he  could  reach  the 
question  of  the  suspension  of  the  writ  of  habeas  corpus. 
Some  intimation  comes  through  Stanton,  that  His  Honor 
the  Chief  Justice  intends  to  make  himself  felt  by  the  Ad- 
ministration, when  he  can  reach  them.  I  shall  not  be  sur- 
prised, for  he  is  ambitious  and  able.  Yet  on  that  subject, 
he  is  as  much  implicated  as  others. 

Feb.  22,  1865.  Met  Speed  at  President's  a  day  or  two 
since.  He  is  apprehensive  Chase  will  fail  the  Adminis- 
tration on  the  question  of  habeas  corpus  and  State  arrests. 
The  President  expresses,  and  feels,  astonishment.  Calls 
up  the  committals  of  Chase  on  those  measures.  Yet  I  think 
an  adroit  intriguer  can,  if  he  chooses,  escape  these  com- 
mittals. I  remember  that  on  one  occasion  when  I  was 
with  him.  Chase  made  a  fling  which  he  meant  should  hit 
Seward  on  these  matters,  and  as  Seward  is,  he  imagines,  a 
rival  for  high  position,  the  ambition  of  Chase  will  not  per- 
mit the  opportunity  to  pass,  when  it  occurs,  of  striking  his 
competitor.  There  is  no  man  with  more  fierce  aspira- 
tions than  Chase,  and  the  Bench  will  be  used  to  promote 
his  personal  ends.  Speed  and  myself  called  on  Seward 
on  Monday,  after  the  foregoing  interview  with  the  Pres- 
ident. Seward  thinks  Chase,  if  badly  disposed,  cannot 
carry  the  Court,  but  this  is  mere  random  conjecture. 

At  the  time  of  the  trial  of  the  assassins  of  Lincoln 
before  a  military  commission   sitting  in  the  District 

>  Springfield  Weekly  RepMiean,  April  7,  1866,  quoting  a  Washington  cor- 
respondent of  tlie  CineinnaH  Commercial;  Men  and  Manners  qf  Half  a  Century 
(1888),  186,  187,  by  Hugh  McCulloch;  The  Diary  qf  Gideon  Wdles  (1911),  II. 
242,  245,  246. 


THE  MILLIGAN  CASE  148 

of  Columbia,  the  attitude  of  some  of  the  other  Judges 
of  the  Court  had  disturbed  the  Radical  leaders  in 
Congress,  who  feared  lest  the  Court  should  issue 
writs  of  habeas  corpus  and  discharge  the  prisoners. 
Welles  recorded  in  his  diary,  July  17,  1865,  that 
Secretary  of  War  Stanton,  in  his  characteristic,  arbi- 
trary fashion,  wanted  the  prisoners  sent  to  the  Dry 
Tortugas  in  the  South,  "where  old  Nelson  or  any 
other  Judge  would  not  try  to  make  difficulty  by 
habeas  corpus/'  The  Judges  had  also  drawn  upon 
themselves  the  criticism  of  the  Radicals,  by  their 
refusal  to  sit  in  the  Circuit  Courts  in  the  Southern 
States,  so  long  as  those  States  were  governed  by  mili- 
tary authority.  Though  the  Federal  District  Judges 
in  Virginia,  Mississippi  and  Alabama  held  Court 
during  1866,  Chief  Justice  Chase  and  his  Associates 
had  declined  to  sit  on  Circuit  until,  as  he  said,  "all 
possibility  of  claim  that  the  judicial  is  subordinate 
to  the  military  power  is  removed,  by  express  declara- 
tion of  the  President";  and  it  was  not  until  June  6, 
1867,  that  he  opened  in  North  Carolina  the  first  Cir- 
cuit Court  to  be  held  in  the  Southern  States.^  The 
refusal  of  the  Chief  Justice  to  hold  Court  in  Virginia, 
thereby  preventing  the  trial  of  JeflPerson  Davis  for 
treason,  gave  particular  offense  to  the  Radical  Re- 
publicans.* 

As  a  consequence  of  this  distrust  both  of  the  Pres- 

'  Under  the  Judiciary  Act  of  July  29,  1866,  the  Supreme  Court  Judges  lost  their 
Circuit  Court  jurisdiction  in  the  Southern  States;  but  this  was  restored  by  the 
Act  of  March  2,  1867.  Cases  appealed  from  Southern  States  were  heard  for  the 
first  time  at  the  December,  1866,  Term  of  the  Supreme  Court,  there  being  then 
twenty-nine  pending;  see  New  York  Herald,  Dec.  18,  1866.  See  Chase's  address 
to  the  Bar,  Amer.  Law  Rev.  (1867),  I,  745. 

*  One  of  Davis'  counsel,  George  W.  Brown,  wrote  to  Franklin  Pierce,  Jan.  10, 
and  July  14,  1866 :  "Whether  or  not  a  trial  will  ever  take  place  is  wholly  uncer- 
tain, dependent  on  the  turn  political  affairs  may  take.  The  Radicals  have  in- 
sisted on  a  trial,  because  they  thought  that  something  might  be  gained  for  thdr 
party,  veiy  erroneously,  I  believe.    It  is  a  strange  and  anomalous  condition  of 


144  THE  SUPREME  COURT 

ident  and  of  the  Court,  the  first  move  which  Congress 
made  was  to  reduce  the  membership  of  the  Court. 
After  the  number  of  Associate  Judges  had  been  in- 
creased to  nine,  in  1863,  to  provide  a  new  Circuit 
Court  for  the  Districts  of  California  and  Oregon,  and 
after  appointment  of  Judge  Field,  the  Court  had 
consisted  of  six  Democrats  and  four  Republicans. 
On  the  appointment  of  Chase  in  1864,  the  Court 
had  become  evenly  divided  in  political  character; 
and  after  Judge  Catron  had  died.  May  30,  1865,  the 
Judges  appointed  by  President  Lincoln  constituted 
a  majority  of  the  Court  (Chase,  Swayne,  Miller, 
Field  and  Davis) .  President  Johnson  had  nominated, 
on  April  16,  1866,  to  fill  the  vacancy  caused  by  Ca- 
tron's death,  Henry  Stanbery  of  Ohio,  a  close  personal 
friend,  then  Attorney-General  of  the  United  States, 
a  Republican  and  a  lawyer  of  high  eminence.  "'A 
most  excellent  appointment,  and  it  is  to  be  hoped  that 
he  will  be  promptly  confirmed.  His  power  of  legal 
analysis,  close  reasoning,  accuracy  of  statement  and 
concise  and  forcible  expression  have  justly  placed  him 
at  the  head  of  the  present  Bar  of  the  Supreme  Court," 
said  a  prominent  Republican  paper. ^  The  Senate, 
however,  was  determined  to  curb  the  President  in 
every  move ;  and  fearing  that  he  might  have  the  op- 
portunity to  make  further  appointments  to  the  Bench, 

things  that  the  Court  which  has  indicted  him  refuses  to  bail  him,  because  he 
is  held  by  the  military  arm  of  the  Government ;  and  the  Chief  Justice  will  not 
hold  Court  in  Virginia,  until  martial  hiw  is  formally  revoked.  He  had  no  such 
scruples  about  holding  Court  in  Maryland,  when  martial  law  was  carried  out 
with  a  strong  hand.  .  .  .  The  real  difficulty,  no  doubt,  is  that  Ch.  J.  Chase 
does  not  choose  to  recognise  Virginia  as  legally  in  the  Union,  by  going  to  Rich- 
mond and  holding  Conrt  there.'*  Franklin  Pierce  Papers  MSS,  See  also  Harper* e 
Weekly,  Nov.  25,  1806,  quoting  Chase  as  saying  that  "it  was  not  becoming  the 
Courts  of  the  United  States  to  sit  in  regions  still  subordinate  to  military  htw.*' 
The  Sprinf^eld  Weekly  RepMiean,  Jan.  18,  20.  Feb.  S,  24,  April  7,  1866,  assailed 
Chase  for  his  attitude  as  to  Davis,  and  said  he  had  "White  House  on  the  brain. 
...  No  man  has  fallen  more  in  public  esteem,  in  public  confidence." 
^  PhOaddpkia  In^mrer,  April  18,  1866. 


THE  MILLIGAN  CASE  145 

it  passed  a  bill,  moved  by  Lyman  Trumbull  of  Illinois, 
providing  for  the  reduction  of  the  number  of  Asso- 
ciate Judges  to  seven.  To  the  question  asked  in  the 
House  whether  '"this  bill  abolishes  the  Judge  whose 
appointment  the  President  sent  to  the  Senate  the 
other  day**,  it  was  stated  by  Wilson  of  Iowa  that 
such  was  its  effect  as  well  as  purpose.^  By  this  Act 
of  July  23,  1866,  the  Court  became  nine  in  number, 
and  by  the  death  of  Judge  Wayne  on  July  5,  1867, 
it  was  further  reduced  to  eight. 

Meanwhile,  before  the  passage  of  this  Act  affecting 
the  membership  of  the  Court,  that  body  had  seemed 
to  justify  the  fears  of  the  Republican  leaders,  by  ren- 
dering a  decision  at  the  very  end  of  the  Term,  on 
April  3,  1866,  which  came  as  a  staggering  blow  to  the 
plans  for  the  use  of  the  military  forces  in  the  process 
of  Reconstruction  then  being  matured  by  Congress. 
In  Ex  parte  Milligan,  4  Wall.  2,  the  Court  held  that 
the  President  had  no  power  to  institute  trial  by  mili- 
tary tribunal  during  the  war  in  localities  where  the 
civil  Courts  were  open.  At  first,  the  country  at  large 
did  not  realize  the  fateful  breadth  of  the  decision, 
and  the  press  paid  little  attention  to  it,  since,  on  this 
date,  the  Court  confined  itself  to  a  mere  announce- 

^  S9th  Cong.,  Iti  Sess.,  Feb.  26,  July  10,  18,  1866.  See  criticism  of  this  action 
€A  Congress  in  Democracy  in  the  United  States  (1868),  by  Ransom  H.  Gillet.  The 
American  Law  Review  (1867),  I,  ii06,  said :  "There  seems  to  have  been  no  serious  op- 
position to  the  law,  which  was  in  no  sense  a  political  measure,  however  much  politi- 
cal feelings  may  have  aided  its  passage.  We  are  constrained,  however,  to  doubt  the 
wisdom  of  it.  Ten  Judges  is  too  large  a  number  for  any  Court ;  but,  when  we 
consider  the  great  extent  of  the  country,  the  distances  which  Judges  have  to  travel, 
the  advantage  of  having  every  section  of  the  Union  represented,  if  possible,  in 
this  tribunal,  —  it  is  a  matter  of  serious  inquiry,  whether  the  number  of  Judges 
can  be  much  reduced,  without  our  incurring  greater  evils  than  that  of  the  bulkiness 
of  the  Bench.  Nor  does  the  Act  strike  us  as  opportune,  if  we  allow  the  abstract 
wisdom  of  it.  In  consequence  of  the  great  number  of  vacancies  which  have  taken 
place  of  late  years,  there  are  many  Judges  of  brief  experience  upon  the  Bench. 
The  older  ones  have  reached  an  age  at  which  we  cannot  expect  much  more  serv- 
ice frcMn  them;  and  the  result  of  the  recent  law  may  be,  that,  ere  long,  the  entire 
South  will  be  without  a  Judge  on  this  Bench,  and  the  country  east  of  the  Allegheny 
Mountains  have  but  two,  who  must  bear  the  chief  burden  of  all  maritime  cases.'* 


146  THE  SUPREME  COURT 

ment  of  its  judgment,  without  setting  forth  its  rea- 
soning. Nevertheless,  its  full  eflfect  was  at  once  ap- 
parent to  President  Johnson  and  to  the  Radical  Re- 
constructionists  in  the  Senate;  and  Welles  recorded 
in  his  diary : 

April  2,  1866:  The  President  inquired  as  soon  as  the 
subject  was  taken  up  whether  any  facts  were  yet  public 
in  relation  to  the  decision  of  the  Supreme  Court  in  the 
Indiana  cases. 

April  6,  1866 :  The  decision  of  the  Supreme  Court  in  the 
Indiana  Cases,  —  Milligan,  Bolles  and  others  —  was  dis- 
cussed. Attorney-General  Speed  could  not  state  exactly 
the  points.  The  Judges  do  not  give  their  opinions  until 
next  winter.  They  seem  to  have  decided  against  the  le- 
gality of  military  commissions.  I  inquired  what  should 
be  done  in  Semmes'  case,  which  had  been  long  pending. 
Little  was  said,  and  the  President  said  he  would  see  me 
after  the  session,  and  I  therefore  remained.  He  remarked 
that  there  was  a  somewhat  strange  state  of  things.  .  .  . 
The  Courts  were  taking  up  some  of  the  cases  for  treason 
and  were  showing  themselves  against  miUtary  commis- 
sions. He  therefore  thought  it  would  be  as  well  to  release 
Semmes  on  parole. 

On  December  17,  1866,  at  the  beginning  of  the  next 
Term,  however,  when  the  Judges  delivered  their  opin- 
ions in  full,  the  decision  became  at  once  the  subject 
of  the  most  violent  and  virulent  attack,  as  well  as  of 
extravagant  praise,  by  the  different  factions  through- 
out the  country.  This  Milligan  Case  had  arisen  in 
the  following  manner.  A  previous  attempt  had  been 
made,  in  1864,  to  secure  an  opinion  from  the  Court 
as  to  the  legality  of  the  military  commissions  con- 
stituted by  President  Lincoln.  Application  had  been 
made  to  the  Court  for  a  writ  of  habeas  corpus  in  the 
case  of  the  notorious  Clement  L.  Vallandigham,  who 
had  been  arrested  and  held  for  military  trial.     No 


THE  MILLIGAN  CASE  147 

decision,  however,  had  been  rendered  on  the  point 
desired  to  be  tested ;  for  the  Court  held,  in  Ex  parte 
VaUandighamy  1  Wall,  243,  on  February  15,  1864, 
that  it  had  no  power  to  issue  such  a  writ  to  a  military 
commission,  since  under  the  Judiciary  Act  its  appel- 
late jurisdiction  extended  only  to  judicial  Courts. 
Within  a  short  time  after  this  decision,  however,  an- 
other case  was  initiated,  in  which  the  Court  would  be 
required  to  face  and  settle  the  issue.  One  Milligan 
had  been  arrested  on  order  of  the  General  command- 
ing the  military  district  of  Indiana  and  tried,  in  Octo- 
ber, 1864,  by  a  military  commission  on  a  charge  of 
conspiracy  against  the  Government,  giving  aid  and 
comfort  to  the  rebels,  initiating  insurrection,  dis- 
loyal practices,  and  violating  the  laws  of  war.  He  was 
found  guilty,  and  was  sentenced  to  be  hung  on  May  19, 
1865.  On  May  10, 1865,  he  petitioned  the  United  States 
Circuit  Court  in  Indiana  for  a  writ  of  habeas  corpus ; 
and  the  Judges  disagreeing  certified  the  question  of  law 
to  the  Supreme  Court.  The  case  was  argued  on 
March  6  to  13,  1866,  only  two  months  after  the  adop- 
tion of  the  Fourteenth  Amendment  by  Congress,  and 
at  a  time  when  legislation  based  on  the  continuance 
of  military  control  was  still  under  debate.^  Impres- 
sive, eloquent  and  impassioned  pleas  were  made  by 
David  Dudley  Field,  General  James  A.  Garfield  and 
Jeremiah  S.  Black  for  the  prisoner,*  and  by  Attomey- 

^  Tlie  resolution  for  this  Amendment  passed  the  Senate,  Jan.  8,  and  the  House, 
Jan.  18,  1866 ;  see  History  qf  Ihe  Fourteenth  Amendment  (1908),  by  Horace  S.  Flack. 

The  Civil  Rights  Act  was  enacted  April  6,  1866,  over  President  Johnson's  veto. 

'  See  Address  of  Levi  March  in  Reminiacencea  of  J.  8.  Black  (1887),  by  M.  B. 
Clayton,  131 :  "Of  the  arguments  the  most  powerful  is  that  of  Jeremiah  S.  Black, 
which  has  been  described  as '  indisputably  the  most  remarkable  forensic  effort  be^ 
fore  that  august  tribunal,  delivering  his  address  without  a  solitary  note  of  read- 
ing from  a  book,  and  yet  he  presented  an  array  of  law,  fact  and  argument,  with 
such  remarkable  force  and  eloquence  as  startled  and  bewildered  those  who  lis- 
tened to  him.  .  .  .  Freedom  was  his  client.  The  great  cause  of  Constitutional 
liberty  hung  upon  that  single  Ufe.'  " 


148  THE  SUPREME  COURT 

General  James  Speed,  Henry  Stanbery  and  Benjamin 
F.  Butler  for  the  Government.  On  April  3,  1866, 
within  the  short  space  of  three  weeks  after  the  argu- 
ment, the  Court  rendered  its  decision,  unanimously 
holding  the  military  commission  authorized  by  the 
President  to  have  been  unlawful,  A  majority  of  the 
Court  —  Judges  Field  and  Davis  (appointed  by  Lin- 
coln) and  Nelson,  Grier  and  Clifford  (appointed  in 
pre-war  days)  —  took  the  occasion  to  state  their  further 
opinion  that  neither  the  President  nor  Congress  pos- 
sessed the  power  to  institute  such  a  military  commis- 
sion, except  in  the  actual  theater  of  war,  where  the 
civil  Courts  were  not  open.  There  being  thus  in- 
jected into  the  case  a  question  which  did  not  arise 
on  the  facts,  four  Judges  —  Chief  Justice  Chase  and 
Judges  Miller,  Swayne  (appointed  by  Lincoln)  and 
Wayne  (appointed  by  Jackson)  —  filed  a  dissenting 
opinion  refusing  to  regard  the  power  of  Congress  as 
subject  to  such  limitations.  The  opinion  of  the 
Court,  holding  Lincoln's  military  tribunal  illegal,  was 
delivered  by  Lincoln's  personal  friend.  Judge  Davis. 
"No  graver  question  was  ever  considered  by  this 
Court,  nor  one  which  more  nearly  concerns  the  rights 
of  every  American  citizen  when  charged  with  crime, 
to  be  tried  and  punished  according  to  law,"  he  said. 
"The  Constitution  of  the  United  States  is  a  law  for 
rulers  and  people,  equally  in  war  and  in  peace,  and 
covers  with  the  shield  of  its  protection  all  classes  of 
men,  at  all  times,  and  under  all  circumstances."  Its 
provisions  cannot  "be  suspended  during  any  of  the 
great  exigencies  of  government.  Such  a  doctrine 
leads  directly  to  anarchy  or  despotism.  .  .  •  Martial 
rule  can  never  exist  where  the  Courts  are  open,  and 
in  the  proper  and  unobstructed  exercise  of  their  juris- 
diction."   Hence  the  military  commissions  were  held 


THE  MILLIGAN  CASE  149 

illegal.^  In  a  dissenting  opinion  agreeing  with  the 
majority  on  the  actual  question  involved,  but  con- 
tending that  Congress  had  the  power  to  institute 
military  commissions,  the  Chief  Justice  said:  ''We 
cannot  doubt  that,  in  such  a  time  of  public  danger. 
Congress  had  power,  under  the  Constitution,**  to 
make  such  provisions  for  military  trial ;  and  he  stated 
that  the  civil  Courts  ''might  be  open  and  undisturbed 
in  the  execution  of  their  functions,  and  yet  wholly 
incompetent  to  avert  threatened  danger,  or  to  punish 
with  adequate  promptitude  and  certainty,  the  guilty 
conspirators.  .  .  •  The  power  of  Congress  to  authorize 
trials  for  crimes  against  the  security  and  safety  of 
the  National  forces  may  be  derived  from  its  consti- 
tutional authority  to  raise  and  support  armies  and  to 
declare  war,  if  not  from  its  constitutional  authority 
to  provide  for  governing  the  National  forces." 

This  famouis  decision  has  been  so  long  recognized  as 
one  of  the  bulwarks  of  American  liberty  that  it  is  diffi- 
cult to  realize  now  the  storm  of  invective  and  oppro- 
brium which  burst  upon  the  Court  at  the  time  when 

*  The  subsequent  facts  as  to  the  petitioner  in  the  MiUigan  Case  are  of  interest. 
His  sentence  of  hanging  on  May  19,  1805,  was  suspended  on  May  10,  pending 
his  petition  to  the  Court;  and  it  was  commuted  to  life  imprisonment  by  Presi- 
dent Johnson  on  June  21,  1865.  He  was  confined  in  the  Ohio  Penitentiary  by 
Older  of  Gen.  Hovey,  the  military  coounander  of  the  District  of  Indiana,  and  was 
released  on  April  10,  1866,  after  the  decision  of  the  Supreme  Court.  On  March 
IS,  1868,  he  brought  an  action  for  damages  against  Gen.  Hovey  in  the  State  Court, 
which,  under  the  Removals  Act,  was  removed  to  the  Fedenl  Circuit  Court  by 
Hovey.  While  it  was  pending  there,  the  Cineinnati  Enquirer,  on  May  18,  1871, 
exprused  the  editorial  hope  that  Milligan*s  suit  would  be  upheld :  "It  would  be 
a  healthy,  political  sign  to  show  that  there  was  a  limit  to  military  usurpation ;  and 
that  even  the  President  of  the  United  States  cannot  give  an  order,  or  enforce  a 
decree,  against  the  law  of  the  land,  and  that  his  illegal  orders  are  no  protection 
to  his  subordinates.  This  is  a  lesson  that  military  tyrants  and  usurpers  should 
be  taught,  if  we  would  preserve  any  remnant  of  liberty  in  the  land.*'  The  jury, 
after  a  charge  from  Judge  Thomas  Drummond,  rendcml  a  verdict  in  Milligan's 
favor,  but  awarded  him  only  nominal  damages,  since  under  the  two  years*  statute 
of  limitation  he  could  only  recover  for  damages  for  confinement  between  March 
IS  and  April  10, 1866.  See  also  Humphrey  v.  MeCormiek  (1866),  87  Ind.  144 ;  and 
WoBkingUm  WeMy  Chronicle^  March  16.  1867. 


160  THE  SUPREME  COURT 

it  was  first  made  public.^  By  the  Reconstruetionists, 
the  decision  was  regarded  as  a  reversion  to  the  theory 
of  constitutional  law  held  by  opponents  of  the  Union ; 
they  claimed  that  the  Court's  doctrine,  if  applied  in 
war  time,  would  have  resulted  in  the  loss  of  the  war ; 
and  they  asserted  that  the  Court  had  now  joined 
hands  with  President  Johnson  in  an  effort  to  destroy 
the  Congressional  plans  for  Reconstruction.  An  il- 
lustration of  this  feeling  as  to  the  majority  opinion 
is  to  be  seen  in  a  letter  written  to  Chief  Justice  Chase 
by  John  Jay:  "If,  as  the  public  begin  to  fear,  their 
denial  of  the  powers  of  Congress  is  any  index  to  the 
view  they  are  prepared  to  take  of  the  great  questions 
that  will  come  before  them  in  reference  to  Reconstruc- 
tion, our  situation  is  certainly  a  grave  one  ...  to 
surmount  the  formidable  opposition,  no  longer  of  an 
obstinate  President  defying  the  will  of  the  people, 
but  of  an  Executive  furnished  with  a  constitutional 
standpoint,  by  the  Supreme  Judiciary  giving  validity 
to  his  acts,  and  checkmating  Congress  at  the  most 
eventful  moment  by  denying  its  powers  and  annulling 
its  legislation.  I  cannot  yet  consent  to  believe  that 
we  are  brought  into  this  dilemma,  and  that  appointees 
of  Mr.  Lincoln  are  ready  to  imitate  the  late  Chief 
Justice,  in  making  the  Court  the  chief  support  of  the 
advocates  of  slavery  and  the  Rebellion.**  *  The  viru- 
lence of  attack  upon  the  Judges  can  only  be  appre- 
ciated by  a  comprehensive  perusal  of  the  editorials 
of  the  day,  of  which  the  following  are  illustrative.' 

1  See  Salmon  Portland  Chase  (1899),  by  Albert  Bushnell  Hart.  The  Waahington 
correspondent  of  the  New  York  Times  wrote,  Dec.  27, 1866:  "There  is  much  con- 
fusion in  the  public  mind  as  to  what  the  Court  actually  did  decide,  and  the  pub- 
licity of  the  decision  is  anxiously  looked  for,  especially  as  the  Court,  in  order  to 
prevent  an  imperfect  synopsis  of  the  decision  from  going  forth,  denied  the  re- 
porters present  the  usual  privilege  of  taking  notes."  The  decision  in  full  was 
given  to  the  public  through  the  press  for  the  first  time  on  Jan.  1,  1867. 

'  Amer.  Hist,  Ass.  Rep,  (1902),  II,  letter  of  Jan.  5,  1867. 

*  iVei0  York  Times,  Jan.  8,  1867 ;   IndianapoUs  Daily  Journal,  Jan.  8,  1867, 


THE  MILLIGAN  CASE  161 

"In  the  conflict  of  principle  thus  evoked,  the  States 
which  sustained  the  cause  of  the  Union  will  recognize 
an  old  foe  with  a  new  face/*  said  the  New  York  Times. 
"It  is  the  old  dogma  of  rigid  construction  as  applied 
to  the  National  Government  and  liberal  construc- 
tion as  applied  to  the  States  on  the  one  hand,  and  on 
the  other,  the  common  sense  doctrine  that  the  Con- 
stitution provides  for  the  permanence  of  the  Union, 
and  for  such  an  exercise  of  authority  by  Congress  as 
may  be  necessary  to  preserve  the  National  ex- 
istence. .  •  .  The  Supreme  Court,  we  regret  to  find, 
throws  the  great  weight  of  its  influence  into  the  scale 
of  those  who  assailed  the  Union  and  step  after  step 
impugned  the  constitutionality  of  nearly  everything 
that  was  done  to  uphold  it.  •  .  •  The  whole  Cop- 
perhead press  exults  over  the  decision. . . .  They  shelter 
themselves  behind  Justice  Davis  and  his  Associates, 
and  indirectly  renew  their  assault  upon  the  policy 
that  dictated  and  guided  the  war  for  National 
unity.  .  .  .  The  newly  declared  reliance  of  the  Presi- 
dent and  the  Southern  States  upon  the  interposition 
of  the  Supreme  Court  has  a  certain  apparent  justifi- 
cation in  this  decision.'*  The  Indianapolis  Journal 
said  that  the  decision  was  "such  as  to  create  mis- 
givings in  the  mind  of  the  patriotic  people  who  saved 
the  Nation  from  destruction  at  the  hands  of  rebels.** 
Admitting  that,  under  some  circumstances,  a  decision 
against  military  tribunals  "would  be  an  invaluable 
defense  to  popular  liberties,  here  it  is  intended  only 
to  aid  the  Johnson  men,  and  is  so  clearly  a  forerunner 
of  other  decisions  looking  to  a  defeat  of  Republican 
ascendancy  and  to  a  restoration  of  Southern  domina- 
tion, that  the  indignation  against  the  Court  is  just 

Cleveland  Herald,  Jan.  8,  4,  5,  7,  1867;  Independent,  Jan.  10,  1867;  Ctnctmiati 
Commerdalt  Jan.  8,  4,  5. 1867. 


152  THE  SUPREME  COURT 

and  warranted/'  But,  it  concluded,  "the  Court 
cannot  enforce  its  reactionary  dogmas  upon  the  peo- 
ple. The  decision  carries  no  moral  force,  and  cannot 
bind  coordinate  departments/'  The  Cleveland  Her- 
aldf  speaking  of  **the  late  alarming  pronunciamento 
called  a  decision  of  the  Supreme  Court*'  termed  it 
a  "judicial  tyranny."  "The  Milligan  decision  now 
occupies  the  moat  prominent  place  in  the  political 
situation,"  it  said.  "A  new  and  most  mischievous 
weapon  has  been  placed  in  the  hands  of  those  who 
oppose  the  great  Union  party."  It  stated  that,  had 
the  decision  been  made  early  in  the  war,  "oiu*  coun- 
try would  have  been  compelled  to  pass  through  an 
ordeal  of  blood  and  turmoil  that  would  have  shaken 
society  in  all  its  phases  to  its  centre,  even  had  not  the 
rebellion  been  successful  in  overthrowing  the  Gov- 
ernment. ...  K  the  doctrine  avowed  by  the  ma- 
jority be  sound,  this  Government  is  but  a  wisp  of 
straw.  ...  It  is  well  enough  to  talk  about  the 
military  power  being  subservient  to  the  civil,  when  the 
civil  power  can  stand;  but  when  war  has  trodden 
down  the  civil  power,  he  is  either  a  traitor  or  a  granny 
who  hesitates  as  to  employing  the  military  power, 
either  its  bayonets  or  its  Courts,  to  preserve  the  life 
of  the  Nation.  The  minority,  as  in  the  Dred  Scott 
Case^  will  receive  the  thanks  of  all  loyal  men  who 
would  seize  any  means  within  reach  to  save  a  govern- 
ment from  the  hands  of  traitors  who  could  subvert 
it,  while  its  timid  defenders  were  poring  over  dusty, 
musty  tomes,  seeking  the  proper  civil  remedy."  It 
"has  produced  a  profound  impression,"  said  the  In- 
dependent. "It  virtually  declares  that  Lincoln's  as- 
sassins suffered  a  juridico-military  murder.  .  .  .  We 
regard  it  as  the  most  dangerous  opinion  ever  pro- 
nounced by  that  tribunal.  .  .  .     Nor  shall  we  waste 


THE  MILLIGAN  CASE  168 

criticism  on  the  verbose  sophistries  with  which  they 
labor  to  conceal  the  iniquitous  doctrines  pro- 
pounded. ...  So  far  as  it  bears  upon  the  actual 
points  in  issue  and  is  a  determination  of  the  case  under 
review,  it  will  be  yielded  to.  Beyond  thisj  it  will  be 
treated  as  a  mere  partisan  harangue,  unseemly,  be- 
cause of  the  source  whence  it  emanated  ...  a  sorry 
attempt  of  five  not  very  distinguished  persons  to  ex- 
hibit themselves  as  profound  jurists,  whereas  they 
have  only  succeeded  in  proving  themselves  to  be  very 
poor  politicians.  We  regret  this  decision  on  many 
grounds.  The  Supreme  Court  had  begun  to  recover 
the  prestige  tarnished  by  the  Dred  Scott  decision. 
.  .  .  The  recent  decision  restores  the  Court  to  the  bad 
eminence  it  occupied  when  Taney  dictated  its  decrees, 
and  will  again  withdraw  from  it  that  entire  confi- 
dence which  a  loyal  people  would  fain  repose  in  its 
adjudications."  The  New  York  Herald  was  especially 
savage  on  the  Court,  and,  in  a  series  of  editorials,  de- 
manded its  reformation.  ^'The  decision  in  the  Indi- 
ana Case  may  be  according  to  the  strict  letter  of  the 
Constitution,*'  it  said.  "But  in  adhering  to  the  strict 
letter,  we  must  go  back  to  President  Buchanan's  de- 
cision, that  he  could  find  no  authority  in  the  Consti- 
tution to  interfere  with  a  seceding  State.  ...  It  is 
in  this  view  of  the  Indiana  decision,  ignoring  the  vital 
necessities  of  the  Government  during  the  Rebellion, 
that  a  reconstruction  of  the  Supreme  Court,  adapted 
to  the  paramount  decisions  of  the  war,  looms  up  into 
bold  relief,  on  a  question  of  vital  importance.  .  .  . 
As  the  Court  now  stands,  away  behind  the  war,  we 
hold  that  there  is  good  reason  to  fear  that  its  judg- 
ments, yet  to  come,  in  regard  to  the  doings  of  Con- 
gress during  and  since  the  war,  including  the  abolition 
of  slavery  and  the  creation  of  our  present  National 


154  THE  SUPREME  COURT 

debt,  if  not  provided  for  in  season,  may  result  in  a 
new  chapter  of  troubles  and  disasters  to  the  coun- 
try." Again  it  said:  *'This  two-faced  opinion  of 
Mr.  Justice  Davis  is  utterly  inconsistent  with  the 
deciding  facts  of  the  war,  and  therefore  utterly  pre- 
posterous. These  ante-diluvian  Judges  seem  to  for- 
get that  the  war  was  an  appeal  from  the  Constitution 
to  the  sword.  •  .  .  This  constitutional  twaddle  of 
Mr.  Justice  Davis  will  no  more  stand  the  fire  of  pub- 
lic opinion  than  the  Dred  Scott  decision."  ^  "It  is 
a  marvelous  fact,"  said  the  Cleveland  Herald^  "that 
each  of  the  two  decisions  of  our  Federal  Supreme 
Court  which  has  gone  the  farthest  to  sustain  slavery 
and  to  paralyze  the  arm  of  our  Government  in  putting 
down  the  rebellion  —  to  wit  the  Dred  Scott  Case  and 
the  MiUigan  Ca^e  —  was  a  decision  falling  under  the 
title  of  an  ipse  dixit ^  a  mere  extra-judicial  assertion 
of  the  Judges."  "Like  the  Dred  Scott  decision,  it 
is  not  a  judicial  opinion;  it  is  a  political  act.  .  •  . 
The  Dred  Scott  decision  was  meant  to  deprive  slaves 
taken  into  a  Territory  of  the  chances  of  liberty  under 
the  United  States  Constitution."  The  Indiana  de- 
cision operates  to  deprive  the  freedmen,  in  the  late 
rebel  States  whose  laws  grievously  outrage  them,  of 
the  protection  of  the  freedmen's  Courts,"  said  Har- 
per's Weekly.  That  this  decision,  which  has  since 
been  recognized  by  all  men  as  the  palladium  of  the 
rights  of  the  individual,  should  at  the  time  of  its  ren- 
dition have  been  so  generally  compared  with  the  Dred 
Scott  Case  is  a  striking  commentary  on  the  passionate 
political  conditions  of  that  era.^ 

1  Nmo  York  HerM,  Dec.  19,  20,  23,  1866,  Jan.  2,  8,  1867.  In  a  later  editorial. 
Jan.  5,  it  termed  the  Court  "a  relic  of  the  past,  nine  old  superior  pettifoggers, 
old  marplots,  a  formidable  barrier  to  the  consummation  of  the  great  revolution." 

*  Cleveland  Herald,  Jan.  4,  1867;  Harper* s  Weekly,  Jan.  19,  1867,  editorial  en- 
titled "The  New  Dred  Scott."  See  also  New  York  Timee,  Jan.  3,  1867,  and 
numerous  papers  comparing  the  MUUgan  Case  to  the  Dred  SeoU  Case, 


THE  MILLIGAN  CASE  155 

The  most  virulent  assault  upon  the  Court  was  made 
by  John  W.  Forney,  in  the  Washington  Chronicle^  the 
semi-official  organ  of  the  Republican  Senate,  and  the 
constant  opponent  of  the  National  Intelligencer  which 
supported  President  Johnson.  "The  decision  cannot 
fail  to  shock  the  sensibilities  and  provoke  the  severe 
rebuke  of  loyal  men  everywhere/*  it  said  in  one  of 
its  earliest  criticisms  of  the  Court.  "The  exulta- 
tion of  the  rebel  Intelligencer  over  it  will  awaken  a 
jubilant  echo  throughout  rebeldom,  and  the  hearts  of 
traitors  will  be  glad  by  the  announcement  that  trea- 
son, vanquished  upon  the  battlefield  and  hunted  from 
every  other  retreat,  has  at  last  found  a  secure  shelter 
in  the  bosom  of  the  Supreme  Court."  This  was  very 
extreme  and  unjustifiable  language,  and  the  personal 
attack  on  the  Judges'  character  very  properly  met 
with  indignant  protest  from  many  men  who,  though 
disagreeing  with  the  Judges'  opinion,  were  eager  to 
defend  their  loyalty.  Nevertheless  the  Chronicle  con- 
tinued, for  a  month,  to  launch  a  series  of  violent  at- 
tacks on  Judge  Davis  and  on  the  Court,  which  were 
widely  copied  and  imitated.^  "We  have  not  met  a 
Republican  who  does  not  speak  with  contempt  of 
the  language  of  Justice  Davis,"  it  said.  "The  peo- 
ple have  said,  if  it  is  not  lawful  to  whip  traitors,  we 
will  make  it  so.  .  .  .  The  denial  of  Congressional 
power  has  elicited  universal  condemnation  from  the 
people  of  the  country.  And  the  fact  that  this  denial 
was  wholly  uncalled  for,  was  well  calculated  to  in- 
spire mistrust  of  the  motives  which  induced  the  Judges 
to  drag  it  into  their  decision.     The  masses  of  the 

^  Washington  ChtxmieU,  Dec.  19,  22,  29,  1866,  and  passim  through  January, 
1867,  and  see  PkUaddphia  Press  and  PkUaddpkia  North  American,  passim  (the 
latter  saying  that  President  Lincoln  had  "made  a  mistake  in  appointing  a  Judge 
of  the  fatal  name  of  Davis*') ;  and  furious  attacks  on  the  Court  and  on  Chief  Jus- 
tice Chase  in  New  York  Tribune^  passim. 


156  THE  SUPREME  COURT 

American  people  are  not  behind  these  five  Judges, 
in  their  reverence  for  the  Constitution  and  their  re- 
gard for  the  rights  of  the  citizen;  but  they  will  not 
assent  to  an  interpretation  of  that  instrument,  which 
places  the  rights  of  the  individual  before  the  safety 
of  the  whole  people."  Again,  it  said  that :  "Time  and 
reflection  have  only  served  to  strengthen  the  con- 
viction of  the  partisan  character  of  the  decision  and 
the  apprehension  that  it  is  the  precursor  of  other  de- 
cisions in  the  interest  of  unrepentant  treason  in  the 
support  of  an  apostate  President."  To  the  Court, 
as  a  co-conspirator  with  President  Johnson  and  as  a 
dangerous  and  reactionary  factor  in  the  Govern- 
ment, it  devoted  several  editorials,  in  the  last 
of  which  it  stated  that  the  decision  "has  not  startled 
the  country  more  by  its  far-reaching  and  calamitous 
results  than  it  has  amazed  jurists  and  statesmen  by 
the  poverty  of  its  learning  and  the  feebleness  of  its 
logic.  It  has  surprised  all,  too,  with  its  total  want 
of  sympathy  with  the  spirit  in  which  the  war  for  the 
Union  was  prosecuted,  and  necessarily  with  those 
great  issues  growing  out  of  it,  which  concern  not  only 
the  life  of  the  Republic  but  the  very  progress  of  the 
race,  and  which,  having  been  decided  on  the  battle- 
field, are  now  sought  to  be  reversed  by  the  very  theory 
of  construction  which  led  to  rebellion.'* 

While  these  criticisms  of  the  MiUigan  Case  deci- 
sion vastly  outweighed  the  applause,  the  more  con- 
servative Republicans  and  the  Democrats  hailed  it 
as  a  triumph  of  the  rule  of  law  over  lawlessness.^ 
"The  laws  are  no  longer  silenced  by  the  clash  of  arms. 
The  supreme  tribunal  of  the  country  has  vindicated 
their  assaulted  majesty,"  said  the  President's  organ, 

^  National  InitXUgencer,  Dec.  18,  18,  20,  25.  27,  28,  31,  1866.  Jan.  1,  8,  11.  15, 
17, 1867;  Naivm,  Jan.  10.  1867. 


THE  MILLIGAN  CASE  157 

the  National  Intelligencer,  on  the  day  after  the  deci- 
sion; and  it  continued  with  the  following  memorable 
words,  which  rang  through  the  country:  **They  are 
disloyal,  who,  under  the  pretense  of  preserving  the 
liberties  of  the  citizen,  have  disregarded  the  obliga- 
tions of  the  organic  law.  They  are  disunionists,  who, 
daiming  to  fight  for  the  Union,  have  trampled  upon 
its  fundamental  bond.  And,  as  in  war  times,  these 
monopolists  of  patriotism  denounced  those  who  up- 
held the  sacred  liberties  of  the  citizen  as  guaranteed 
by  the  Constitution,  so  now,  in  the  midst  of  peace, 
they  assail  those  who  maintain  the  rights  of  the  States 
as  guaranteed  by  that  same  instrument.  But  the 
Supreme  Court  has  evermore  made  such  an  assault 
upon  the  rights  of  the  citizen  impossible;  and  we 
doubt  not  that,  in  due  time,  it  will  extend  its  broad 
aegis  over  the  violated  commonwealths  of  the  South.'* 
In  later  editorials,  it  termed  the  decision  of  greater 
moral  weight  than  any  ever  rendered,  since  "neither 
in  the  breadth  of  the  issue,  the  extravagance  of  con- 
temporary heresies  on  the  subject,  nor  in  the  magni- 
tude of  the  stake  could  any  law  cause  before  that 
Court  compare  with  this.  ...  It  establishes  the  rights 
of  the  citizen  on  an  impregnable  basis.  It  is  not 
Milligan,  the  alleged  conspirator,  who  is  set  free; 
but  Milligan,  citizen,  tried  by  an  illegal  tribunal. 
...  It  is  not  the  crime  of  treason  which  is  shielded 
by  this  memorable  decision,  but  the  sacred  rights  of 
the  citizen  that  are  vindicated  against  the  arbitrary 
decisions  of  military  authority.  Above  the  might 
of  the  sword,  the  majesty  of  the  law  is  thus  raised 
supreme."  And  to  the  "wild  attacks  of  partisan 
malevolence  and  malice",  and  to  the  diatribes  of  the 
Senators,  the  Chronicle  and  the  Bureau  of  Military 
Justice  and  others,  calling  for  impeachment  of  the 


158  THE  SUPREME  COURT 

Judges  and  for  reconstruction  of  the  Court,  it  said: 
**We  defend  now  the  people  against  the  anarchical 
schemes  of  those  who,  in  overriding  the  Court,  fear- 
fully imperil  our  liberties,  by  striving  to  impair  the 
public  respect  for  law  and  for  an  impartial  Judici- 
ary. The  anarchists  who  would  destroy  the  public 
confidence  in  the  Constitution  and  its  Supreme  Court 
are  as  dangerous,  as  the  revolutionists  who  sought 
to  withdraw  from  that  jurisdiction."  The  Nation, 
Republican  in  its  views,  remarked  that  President 
Lincoln  had  '^at  times  seemed  to  revel  in  the  breach 
of  Acts  of  Congress,  and  did  so  with  the  ai^roval  of 
a  large  portion  of  the  public"  and  that  the  chief  criti- 
cism of  President  Johnson  had  been  his  exaltation 
of  Executive  power;  and  it  stated  that  the  very  men 
who  had  previously  denounced  Presidential  usurpa- 
tion were  now  talking  of  ^^  impeaching  the  Judges 
for  doing  what  they  were  bound  to  do  before  God  and 
man,  come  what  might.  .  .  .  We  hope  this  whole 
matter,  grave  and  important  as  it  is,  will  open  the 
eyes  of  the  public  to  the  great  danger  there  is  that 
the  breaches  of  law  and  of  propriety,  into  which  over- 
zeal  on  behalf  of  the  right  now  carries  us,  may  be, 
one  day,  used  against  it,  in  defense  of  the  wrong.  It 
is  not  very  long,  since  there  was  a  majority  in  the 
United  States  on  the  side  of  wickedness,  and  we  may 
all  live  to  see  it  again;  if  we  should,  we  may  have 
sore  need,  for  our  own  protection,  of  all  the  forms  and 
traditions  of  the  law  and  the  Constitution."  The 
Springfield  Republican,  which  had  been  a  strong  anti- 
slavery  paper,  but  which  was  now  less  radical  in  its 
Republicanism,  said  that  the  decision  had  been 
strangely  misunderstood  and  perverted",  and  that 
to  suspect  such  men  as  Judges  Chase,  Davis  and 
Wayne  of  assenting  to  any  doctrine  that  shall  cripple 


THE  MILLIGAN  CASE  159 

the  power  of  the  Government  to  suppress  rebellion 
is  preposterous.  •  .  ..  The  Milligan  decision  is  simply 
a  reaffirmation  of  the  sacred  right  of  trial  by  jury. 
To  deny  principles  so  well  established  and  so  essen- 
tial to  liberty  and  justice  would  not  be  progress, 
but  a  long  step  backwards  towards  despotism."  It 
pointed  out  that  the  decision  would  not  necessarily 
operate  to  prevent  action  of  Congress  in  Reconstruc- 
tion, since  ^^the  application  of  the  decision  of  the 
Court  to  the  Southern  States  must  be  governed  by 
opinions  of  the  conditions.  The  President  has  pro- 
claimed them  at  peace,  and  the  civil  law  in  full  force. 
Those  who  believe  that  the  war  is  still  going  on  will 
call  for  the  perpetuation  of  military  Courts."  And 
it  very  sanely  stated  its  belief  that  "attempts  to  ex- 
cite popular  alarm  or  partisan  animosity  are  false 
and  foolish,  and  so  palpably  so  that  they  cannot  suc- 
ceed. The  Democrats  want  very  much  to  be  the 
sole  champions  of  the  Constitution  and  the  Supreme 
Court,  and  they  will  not  achieve  that  honor.  .  .  . 
No  good  citizen  can  regret  that  the  Constitution  and 
laws  are  again  declared  supreme.  If  either  are  faulty 
or  behind  the  spirit  of  the  age,  the  people  are  sov- 
ereign, and  the  process  of  amendment  is  easy  and 
direct."  1 

The  Democratic  papers  naturally  applauded  the 
decision.^  "It  is  both  a  triumphant  vindication  of 
the  Democratic  party  and  a  happy  augury  of  the 
future,"  said  the  New  York  World.  "This  decision 
on  a  matter  which  was  the  main  topic  of  controversy 

^  SpringfiM  RepMiean,  Jan.  2,  5,  1867.  This  paper  was  one  of  the  few  which 
had  recognized  the  importance  of  the  decision,  when  rendered  in  the  preceding 
April;  and  it  had  then  rejoiced,  April  7,  1806,  that  it  would  end  the  "senseless 
clamor  for  the  military  trial  of  Jefferson  Davis  and  other  rebel  leaders." 

*New  York  World.  Dec.  18,  19,  21,  25,  1866,  Jan.  6,  12,  1867;  BaUimare  Snn, 
Dec.  22,  1866;  Richmond  Enquirer,  Dec.  20,  24,  27,  28,  1866.  Detroit  Free  Frees, 
Jan.  8,  11,  1867. 


160  THE  SUPREME  COURT 

between  the  Democratic  Party  and  its  opponents 
during  the  war  is  the  final  judgment  of  the  law,  as 
it  will  be  the  verdict  of  history,  that  the  obloquy 
heaped  upon  Democrats  for  their  opposition  to  the 
arbitrary  exertion  of  authority  was  undeserved, 
.  .  •  that  the  arbitrary  proceedings  against  which 
they  protested  were  as  lawless  as  they  were  high- 
handed. •  •  •  There  is  always  a  period  of  peril  to 
civil  liberty.  .  .  •  The  fact  that  the  Supreme  Court 
has  escaped  the  servile  contamination  of  the  times, 
and  pronounces  an  independent  opinion  which  vindi- 
cates a  party  so  traduced  and  maligned  as  the  Democ- 
racy, is  full  of  encouragement."  The  Baltimore 
Sun  rejoiced  at  the  Court's  emphatic  declaration  that 
the  Constitution  is  the  supreme  law  in  war  as  well  as 
in  peace.  **With  that  single  sentence  the  miserable 
plea  of  military  necessity  is  torn  from  human  liberty, 
and  men  feel  again  that  the  chains  of  despotic  power 
are  utterly  riven.  .  .  .  The  great  writ  of  habeas 
corpus  is  no  longer  an  idle  phrase."  It  asserted  that 
the  decision  had  greatly  increased  the  confidence  of 
the  people  in  the  Court.  "Fanaticism,  feeling  the 
sting  of  death  in  the  decision,  has  already  raised  a 
clamor  for  the  overthrow  of  the  Court;  but  fast  an- 
chored in  the  affections  of  the  American  people  that 
tribunal  will  resist  the  assaults  directed  against  it, 
and  continue  the  tranquil  and  sure  arbiter  of  right." 
And  it  said  that  the  decision  ''needing  no  commen- 
tary, and  by  its  piercing  force  of  truth  and  logic 
admitting  of  no  refutation  .  .  •  ought  to  be  read  by 
every  man  who  has  pride  in  the  name  of  an  American 
citizen." 

That  the  newspapers  in  the  late  Confederate  States 
should  rejoice  at  the  decision  was  also  natural;  but 
if  there  were  readers  of  the  Richmond  Enquirer  of 


THE  MILLI6AN  CASE  161 

the  year  1821  who  were  alive  on  December  27,  1866, 
they  must  have  been  astounded  to  read  in  its  columns, 
on  the  latter  date,  an  article  highly  praising  the  Su- 
preme Court  of  the  United  States  for  its  exercise  of 
the  function  of  testing  the  constitutionality  of  leg- 
islation, and  for  its  position  as  one  of  the  needful 
checks  and  balances  of  Government.  ""It  has  in- 
spired us  with  new  hope  for  the  future  of  oiu*  insti- 
tutions,'' it  said.  '^It  could  not  have  been  foreseen 
that  the  Judiciary  both  in  England  and  America 
would  have  proved,  in  the  main,  so  pure  and  incor- 
ruptible, so  elevated  above  the  passions  of  the  hour, 
and  so  fearless  and  efficient  in  checking  the  usurpa- 
tions of  power  proceeding  from  other  departments. 
•  .  .  Now  that  the  Supreme  Court  has  come  to  the 
rescue  of  the  Constitution,  the  future  is  lighted  with 
signs  of  good  cheer."  Later,  it  pointed  out  the  re- 
markable freedom  from  partisan  action,  as  shown  by 
the  decision  of  the  Chief  Justice,  **a  high  priest  of 
radicalism",  and  of  his  Republican  Associates,  de- 
fending the  Constitution  in  direct  opposition  to  the 
political  measures  advocated  by  their  Party;  and  it 
expressed  the  ardent  hope  that  the  Judges  would 
stand  firm,  though  they  had  been  ""  reproached  as 
enemies,  if  not  traitors,  to  their  party,  threatened 
with  reconstruction,  threatened  with  demolition,  in- 
sulted, abused  and  defied.  ...  If  the  authority  of 
the  Constitution  shall  be  vindicated,  the  South  is 
safe  and  the  end  of  her  troubles  approaches." 

The  view  expressed  by  the  Democratic  press  un- 
doubtedly represents,  in  general,  the  verdict  of  his- 
tory on  the  immortal  opinion  of  Judge  Davis  in  sup- 
port of  the  right  of  the  citizen  to  protection  against 
arbitrary  military  action.  But  there  has  always 
been  considerable  sympathy  with  the  sentiments  en- 
voi*, ni — 0 


162  THE  SXJPREME  COURT 

tertained  by  the  Republicans  towards  that  part  of 
the  decision  of  the  foiu*  Judges  which  distinguished 
the  question  of  Congressional  power  from  Executive 
usurpation ;  and  an  eminent  jurist  wrote  with  much 
reason,  fourteen  years  after  the  decision:  "The 
minority  opinion  is  the  only  view  which  can  recon- 
cile jurisprudence  with  political  science,  law  with 
policy.  It  is  devoutly  to  be  hoped  that  the  decision 
of  the  Court  may  never  be  subjected  to  the  strain  of 
actual  war.  If,  however,  it  should  be,  we  may  safely 
predict  that  it  will  necessarily  be  disregarded.  In 
time  of  war  and  public  danger,  the  whole  power  of 
the  State  must  be  vested  in  the  General  Government, 
and  the  constitutional  liberty  of  the  individual  must 
be  sacrificed,  so  far  as  the  Government  finds  it  neces- 
sary for  the  preservation  of  the  life  and  security  of 
the  State.  This  is  the  experience  of  political  history 
and  the  principle  of  political  science."^  That  the 
doctrine  asserted  by  the  majority  is  "calculated  to 
cripple  the  constitutional  powers  of  the  Government 
and  to  augment  the  public  dangers  in  times  of  in- 
vasion and  rebellion'*  (in  the  words  of  Chief  Justice 
Chase)  is  so  unquestionable  as  to  excuse  both  those 
who  were  confronting  the  problems  of  Reconstruc- 
tion in  1867,  as  well  as  those  who  may  in  the  future  be 
called  on  to  deal  with  internal  war  problems  in  this 
country,  for  hoping  for  a  reversal  of  the  Court's  deci- 
sion on  this  point.  But  whatever  may  be  the  view  as 
to  the  law  so  laid  down,  there  was  a  serious  and  well- 
founded  criticism  of  the  propriety  of  the  Court's  ac- 
tion in  expressing  any  opinion  whatever  on  the  power 

1  Political  Science  and  ConstUuHond  Law  (1890),  by  John  W.  Burgess,  I,  250- 
252.  ''Political  science  would  confer,  and,  as  it  appears  to  me,  the  Constitution 
does  confer,  the  power  of  determining  when  and  where  war  exists,  upon  those 
bodies  who  represent  the  whole  United  States,  who  wield  the  power  of  the  United 
States  and  upon  whom  the  Constitution  casts  the  responsibility  of  the  public  de- 
fence against  both  the  foreign  and  the  domestic  foe." 


THE  MILLIGAN  CASE  163 

of  Congress;    and  a  leading  law  journal  expressed 
very  ably  the  views  of  the  Bar  at  the  time :  ^ 

On  the  main  point  at  issue,  all  the  nine  Judges  agreed. 
It  is  rare  that  the  whole  Court  agrees  on  any  constitutional 
question;  it  is  stiU  more  rare  when  the  Court  agrees  to 
decide  an  important  question  in  opposition  to  Executive 
authority  and  the  current  of  popular  feeling;  and  such 
unanimity  is  too  precious  a  thing  to  be  hid  under  a  bushel. 
Had  this  unanimous  opinion  been  given  simply  and 
directly,  it  would  have  established  for  ever  a  solid  prin- 
ciple of  law,  on  which,  in  all  troublous  times,  the  country 
would  have  relied.  It  would  have  been  a  strong  defence 
against  all  assaults  upon  the  liberties  of  the  people.  It 
would  have  commanded  universal  respect,  and  would  have 
enlisted  in  its  support  the  sound  judgment  and  the  common 
sense  of  the  Nation.  But  the  Court  did  not  deliver  a 
unanimous  opinion.  They  divided  on  a  point  which  was 
not  before  them  for  adjudication.  .  .  .  Had  they  in  truth, 
simply  adhered  to  their  plain  duty  as  Judges,  they  could 
have  united  in  one  opinion  on  this  most  important  case. 
We  deem  the  course  they  saw  fit  to  adopt  matter  for  great 
regret.  Instead  of  approaching  the  subject  of  the  powers 
of  the  coordinate  branches  of  the  government  as  one  of 
great  delicacy,  which  they  were  loath  to  consider,  but 
which  they  felt  bound  to  pass  upon  because  it  was  involved 
in  the  righteous  decision  of  the  cause  before  them,  yet  con- 
cerning which  they  had  nothing  to  do,  and  would  have 
nothing  to  say,  except  so  far  as  it  was  necessary  to  the 
determination  of  that  cause,  they  have  seemed  eager  to 
go  beyond  the  record,  and  not  only  to  state  the  reason 
of  their  present  judgment,  but  to  lay  down  the  principles 
on  which  they  would  decide  other  questions,  not  now  be- 
fore them,  involving  the  gravest  and  highest  powers  of 
Congress.  They  have  seemed  to  forget  how  all-important 
it  is  for  the  preservation  of  their  influence  that  they  should 
confine  themselves  to  their  duties  as  Judges  between  the 
parties  in  a  particular  case;  how  certainly  the  jealousy 
of  the  coordinate  departments  of  the  government  and  of 
the  people  would  be  excited  by  any  attempt  on  their  part 

1  Aturioan  Law  Rmew  (April  1S0T}»  I,  672. 


164  THE  SUPREME  COURT 

to  exceed  their  constitutional  functions ;  and  how,  the  more 
a  case  before  the  Supreme  Court  assumes  a  political  as- 
pect, the  more  cautious  should  the  Judges  be  to  confine 
themselves  within  their  proper  limits.  .  .  .  But,  however 
much  the  Supreme  Court  may  have  provoked  criticism, 
none  the  less  is  much  of  that  criticism  to  be  deprecated. 
And  the  most  alarming  feature  in  such  criticism  is  not  indig- 
nation that  the  Judges  have  decided  from  political  pre- 
possessions, but  a  feeling  that  they  are  to  blame  if  they  do 
not  —  a  feeling  that  a  Judge  of  the  Supreme  Court  of  the 
United  States  who  gives  judgment  contrary  to  the  wishes, 
foi'  the  time  being,  of  a  majority  of  the  people,  or,  at  any 
rate,  contrary  to  the  wishes  of  an  Administration  which 
raised  him  to  the  Bench,  is  liable  to  the  same  just  censure 
that  waits  upon  a  politician  who  has  left  the  party  to  which 
he  has  pledged  himself,  and  votes  with  the  opposition; 
that  a  Judge  is  in  fact,  a  representative  to  carry  out  the 
wishes  of  a  political  party.  Against  this  degradation  of 
the  judicial  oflBce  we  protest.  For  what  is  the  Supreme 
Court  mainly  established  but  that  it  may  be  a  tribunal 
of  last  resort,  composed  of  men  uninfluenced  by  Executive 
or  Legislative  power  or  popular  impulse,  who  may  do  jus- 
tice, free,  as  far  as  the  lot  of  humanity  admits,  from  party 
passion  or  political  expediency  ? 

The  apprehensions  of  the  Radical  Republicans  as 
to  the  disastrous  effect  of  the  Milligan  Case  decision 
upon  their  policies  were  fully  confirmed  by  the  steps 
which  were  taken  by  the  President  and  by  the  action 
of  some  of  the  Federal  Judges,  immediately  follow- 
ing the  publication  of  the  opinion.  President  John- 
son regarded  it  as  an  indorsement  of  his  policy  to 
put  an  end  to  military  government  in  the  South 
as  soon  as  possible;  and  he  at  once  issued  orders 
dismissing  all  trials  of  civilians  by  the  military  then 
pending  in  Virginia  and  in  other  States  in  which  the 
Republicans  were  claiming  that  a  condition  of  war  still 
existed ;  and  a  similar  action  was  taken  by  Judge  Hall 
of  the  United  States  District  Court  in  Delaware  in 


THE  MILLIGAN  CASE  165 

ordering  the  release  on  habeas  corpus  of  four  men 
convicted  of  murder  of  Union  soldiers  by  a  military 
Court  in  South  Carolina.*  Though  the  Court  spoke 
of  Indiana  and  any  State  where  the  Courts  have  been 
open  and  unobstructed,  said  the  New  York  Herald^ 
**the  President  insists  that  the  decision  applies  as 
well  to  Virginia  as  to  Indiana,  and  eager  to  please  the 
white  blood-hounds  of  the  Old  Dominion,  he  orders 
the  dismissal  of  a  military  tribunal  engaged  in  trying 
the  murderer  of  a  black  man.  There  is  no  warrant 
for  such  a  cruel  inference ;  but  the  President  will  not 
wait,  but  wishes  with  unseemly  haste  to  issue  his 
order  to  all  departmental  commanders  on  rebel  soil 
to  reaped  the  decision  of  the  Court.**  The  Radical 
Republicans  were  even  more  disturbed  by  the  realiza- 
tion that  the  logical  result  of  the  decision  was  to  de- 
clare illegal  the  trial  and  conviction  of  Lincoln's  as- 
sassins, and  to  constitute  the  execution  of  Payne, 
Atzerott,  Herold  and  Mrs.  Suratt,  little  more  than 
lynching.  "It  virtually  declares  that  they  suffered 
a  juridico-military  murder,"  said  the  Independents 
That  their  apprehensions  were  justified  became  evi- 
dent when,  within  a  week  after  the  Milligan  decision 
in  December,  1866,  applications  were  made  to 
Judge  Wayne  and  to  Chief  Justice  Chase  for  a 
writ  of  habeas  corpus    by   one    of    these    prisoners 

^  See  especially  m  to  this  case  Botton  Daily  AdoertUef,  Feb.  8,  1867.  The  Nor 
HUm  said,  Jan.  8,  1867 :  *'  Mr.  Johnson  has  at  last  found  what  he  imagines  to  be 
a  snug  and  safe  harbor  for  his  'policy.'  The  Supreme  Court  has  come  to  his  aid, 
and  has  already  declared  nulituy  commissions  illegal  —  thus  putting  an  end  to 
military  interference  with  the  action  of  the  local  authorities  at  the  South  —  and 
it  is  fully  believed  will  take  strong  conservative  ground  in  several  cases  now  be- 
fore it." 

*  New  York  Harold,  Dec.  28,  28,  1866;  IndependefU,  Jan.  8,  1867.  See  Life  rf 
Lyman  TrumbtiU  (1918),  by  Horace  White.  The  Washington  correspondent  of 
the  Boston  Daily  Advertiser,  Dec.  27,  1866,  said:  "Grood  lawyers  here  give  it  as 
their  opinion  that  the  late  decision  renders  the  Secretary  of  War,  the  Judge  Ad- 
vocate General  and  all  the  members  of  the  Court  which  tried  the  assassins,  liable 
to  prosecution ;  while  Secretary  Stanton  holds  that  it  overthrows  the  Freedmen's 
Bureau,  and  renders  the  Army  wholly  powerless  in  the  South." 


166  THE  SUPREME  COURT 

at  the  Tortugas  convicted  by  military  commis- 
sion.^ Though  Chase  denied  the  application,  he  based 
his  refusal  only  on  the  ground  that  he  had  no  power 
to  issue  such  a  writ  outside  his  own  Circuit;  and 
therefore  the  question  of  the  legality  of  the  military 
trial  of  the  prisoner  still  remained  open.  This  episode 
brought  about  an  active  debate  in  the  House  of  Rep- 
resentatives in  Congress,  on  January  3,  1867,  on  a 
resolution  that  the  Committee  on  the  Judiciary  should 
report  on  the  advisability  of  a  repeal  of  the  habeas 
corpus  law  of  March  3,  1863,  so  as  "to  prevent  the 
Supreme  Court  from  releasing  and  discharging  the 
assassins  of  Mr.  Lincoln  and  the  conspirators  to 
release  the  rebel  prisoners  at  Camp  Douglas  in 
Chicago.'*  Of  the  excited  political  atmosphere  at 
Washington,  a  Western  correspondent  wrote:  "The 
President  holds  that  this  decision  applies  to  every  re- 
bellious State  as  well  as  to  the  loyal ;  and  the  blood- 
hounds are  loose  all  over  the  South,  and  the  freed- 
men  must  take  their  chances.  I  am  informed  on  very 
respectable  authority  that  one  at  least  of  the  majority 
Judges  in  the  decision  of  the  Court  is  very  nervous 
over  the  result  of  this  blunder.  The  Justice  I  refer 
to  was  a  personal  friend  of  Mr.  Lincoln,  and  claimed 
to  be  at  that  time  a  staunch  Republican.  He  shud- 
ders as  he  sees  the  cruelties  that  are  to  be  perpetrated 
all  over  the  South  under  his  decision,  but  it  is  too 
late.  If  a  case  could  properly  come  before  the  Court, 
it  would  be  found  that  a  majority  do  not  hold  that 
military  tribunals  are  unconstitutional  in  the  rebel- 

'  See  IndianapolU  Daily  Journal,  Jan.  8,  1867 ;  Springfield  Repvbliean,  Dec. 
29,  1866;  Boiton  Daily  Advertiser,  Dec.  21,  25,  1866;  speech  of  Reverdy  John- 
son, Jan.  25,  1867,  S9th  Cong,,  2d  Sees.,  780.  It  appears  that  another  application 
for  habeas  corpus  by  this  prisoner  was  contemplated  later,  in  1867,  when  Judge 
Wayne  should  for  the  first  time  hold  Court  on  Circuit  in  Florida,  but  it  was  not 
made,  and  the  prisoner  was  pardoned  by  President  Johnson  in  Feb.,  1869.  See 
Life  cf  Samud  A.  Mudd  (1906),  by  Nettie  Mudd,  letters  of  Jan.  15,  March  25, 1867. 


THE  MILLIGAN  CASE  167 

lious  States,  for  Congress  holds  that  they  are  still  in 
a  belligerent  condition.  •  .  .  Should  the  Court,  how- 
ever, by  any  other  decision  show  that  it  is  irrevo- 
cably wedded  to  pro-slavery  ideas,  to  a  sympathy 
for  rebels  —  then  a  future  Congress  will  reorganize 
the  Court."  ^  Another  correspondent  wrote :  "Thad- 
deus  Stevens  today  visited  several  of  the  Depart- 
ments, and  with  General  Schenck  had  a  long  inter- 
view with  Secretary  Stanton.  .  .  .  He  has  a  great 
contempt  for  the  Supreme  Court's  decision  in  the 
MUligan  Case,  He  does  not  favor  the  project  of 
impeaching  several  of  the  Justices,  but  wants  to  im- 
peach the  President,  from  whom  all  the  evils  flow. 
General  Grant  had  a  long  interview  with  Secretary 
Stanton  today  upon  the  effect  of  the  recent  decision 
of  the  Supreme  Court  upon  military  commissions. 
It  renders  the  Freedman's  Bureau  and  Civil  Rights 
bills  a  nullity,  and  while  it  is  allowed  to  stand,  orders 
will  be  issued  to  prevent  any  conflict  of  authority 
under  it.  Secretary  Stanton,  General  Geary,  General 
Palmer  and  all  the  other  army  officers  who  have  been 
on  military  commissions  are  hourly  liable  to  criminal 
arrest  and  trial.  Senator  Trumbull  who  drew  up 
both  the  above  bills  agrees  with  the  Supreme  Court. 
The  decision  creates  intense  excitement  and  it  is 
now  claimed  by  the  President  that  the  Constitutional 
Amendment  abolishing  slavery  will  yet  be  declared  a 
nullity.  A  movement  that  will  be  started  tomorrow 
for  the  impeaching  of  several  of  the  Justices  will  meet 

^  Clevdand  Herald,  quoting  Detroit  Tribune,  Jan.  2,  1867 ;  see  also  Cincinnati 
Commgreial,  Jan.  6,  1867.  The  Springfidd  RepMiean,  Dec.  29,  1867,  said :  "All 
the  copperheads  and  secessionists  of  this  vicinity  have  jumped  to  the  conclunon 
that  under  the  recent  decision  of  the  Supreme  Court  military  tribunals  are  un- 
constitutional in  the  rebellious  States.  The  language  of  the  decision  warrants 
no  such  inference.  .  .  .  One  or  two  of  the  Judges  who  supported  the  recent  de- 
cision are  said  to  be  not  a  little  nervous  over  the  use  the  President  is  making  of  it 
at  the  South.'* 


168  THE  SUPREME  COURT 

with  favor  in  the  House,  where  there  are  a  number  of 
military  men  ready  to  take  the  strongest  ground 
against  judicial  usurpation ;  but  in  the  Senate,  there 
are  no  soldiers,  and  any  move  like  impeachments 
would  be  hopeless  before  the  present  Senate.  Mr. 
Stevens  is  preparing  some  stringent  measures  to  pro- 
tect the  country  from  the  evil  tendencies  of  the  Su- 
preme Court.*' 

These  accounts  were  not  exaggerated;  for  the  re- 
ports of  statements  made  by  the  President  that  the 
Supreme  Court  was  prepared  to  follow  its  Milligan 
decision  to  its  logical  consequences  and  to  hold  un- 
constitutional any  legislation  which  contemplated  the 
government  of  the  Southern  States  by  military  force, 
aroused  the  Republican  leaders  in  Congress  to  a  con- 
sideration of  means  of  curbing  the  Court.  ^  The 
measure  most  vigorously  urged  upon  them  was  a  re- 
organization of  the  Court,  the  argument  for  which 
was  strongly  set  forth  as  follows  by  Harper^ s  Weekly : 
"The  people  have  decided  that  Congress  has  supreme 
authority  in  time  of  war  and  must  necessarily  be  judge 
when  and  where  and  how  to  exercise  it.  They  have 
decided  that  States  which  rebel  have  not  a  continu- 
ous right  to  resume  at  their  pleasure  their  functions 
in  the  Union,  but  are  to  resume  them  upon  such  terms 
as  the  victorious  loyal  people  in  Congress  may  deter- 

>  "The  President  is  said  to  have  conferred  with  several  Judges  of  the  Supreme 
Court  in  regard  to  the  positions  assumed  by  Congress  towards  the  Southern  States, 
when  he  announced  to  the  Commissioner  from  South  Carolina,  Mr.  Wetherby, 
that  the  Supreme  Court  would  declare  the  Amendment  unconstitutional,  and  is 
thought  to  have  spoken  by  the  card,"  wrote  the  Washington  correspondent  of  the 
Columbiu  Morning  Jowmal  (Ohio),  Jan.  1,  1867;  see  also  New  York  Tribune, 
Jan.  1,  1867.  But  as  to  this,  the  Nation  rightly  said,  Jan.  8,  1867:  "Statements 
of  what '  is  said '  are  of  little  value  unless  we  know  who '  said  it.'  It  is  very  unlikely 
that  President  Johnson  knows  anything  more  about  the  way  in  which  the  Supreme 
Court  is  likely  to  decide  on  any  of  the  great  questions  of  the  day  than  anybody 
else.  The  Judges  may  not  be  *  sound  *  on  the  Reconstruction  question,  but  most 
of  them,  at  least,  still  retain  a  strong  sense  of  judicial  propriety,  and  find  better 
occupation  than  talking  over  thdr  dedaions  with  Mr.  Johnson." 


THE  MILLIGAN  CASE  169 

mine.  .  •  •  It  is  plain  that  if  Congress  passes  laws 
the  Supreme  Court  declares  unconstitutional  and 
which  the  President,  as  Commander-in-Chief,  refuses 
upon  that  ground  to  execute,  the  situation  would  be 
critical.  But  the  remedy  is  obvious  and  it  is  not 
revolutionary.  ...  K  the  Supreme  Court  under- 
takes to  declare  that  the  people  of  the  United  States, 
at  the  end  of  a  long  and  fearful  war  in  which  they 
saved  the  Government,  can  do  nothing  to  secure  that 
Government  from  similar  assaults  hereafter,  let  the 
Supreme  Court  be  swamped  by  a  thorough  reorgani- 
zation and  increased  number  of  Judges.  .  •  .  The 
question  in  regard  to  the  Supreme  Court  need  not 
be  misunderstood.  It  is  not,  whether  in  time  of  peace 
in  loyal  States  the  civil  Courts  shall  be  supreme,  which 
nobody  questions.  It  is,  whether  loyal  men  or  rebels 
shall  reorganize  the  Union.  .  .  •  The  remodeling  of 
the  Court  may  truly  be  called  an  extreme  measure, 
to  be  adopted  only  in  most  extraordinary  cases,  as 
that  which  would  arise  if  the  five  Judges  should  de- 
liberately undertake  to  nullify  the  will  of  the  majority 
of  the  people  of  the  United  States  in  reorganizing  the 
Union.  '*  ^  This  recommendation  for  a  re-formation 
of  the  Court,  which  had  been  advocated  also  by  the 
New  York  Herald^  was  opposed,  however,  both  by  Re- 
publicans and  Democrats,  as  a  ^^  desperate  and  dis- 
graceful*' device  to  "pack"  the  Court;  and  it  was 
pointed  out  that  the  Constitution  stood  in  the  way 
of  abolition  of  the  Court,  and  that  even  if  the  Judges 
should  be  removed,  or  additional  Judges  created,  it 
would  rest  with  President  Johnson  to  make  the  new 
appointments. 

While  this  measure,  therefore,  did  not  secure  sup- 
port in  Congress,  the  debates,  during  December,  1866, 

1  EarTpef*$  WeMy,  Jan.  19»  Feb.  0,  Maicli  %  1807. 


170  THE  SUPREME  COURT 

and  January,  1867,  over  other  bills  directed  against 
the  Court  were  long-continued  and  bitter.  The  dis- 
cussion was  opened  by  Reverdy  Johnson  in  the  Senate, 
defending  the  Court  from  the  infamous  charge  made 
against  the  Judges  by  the  Washington  Chronicle} 
"The  opinion  of  the  majority  was  given  by  a  man 
whose  character,  public  and  private,  stands  beyond 
possible  reproach,  placed  upon  that  high  tribunal 
by  the  lamented  late  President,  loyal  throughout 
the  civil  contest  in  which  we  have  been  engaged," 
Johnson  said.  "The  editor  to  whom  I  allude  thought 
proper  to  say  that  treason  had  found  a  refuge  in  the 
bosom  of  the  Supreme  Court  of  the  United  States.  I 
am  sure  no  Senator  on  this  floor  will  justify  such  an 
attack.  .  .  .  They  (the  Judges)  will  stand  upon  the 
character  which  long  lives  of  honor  and  integrity  have 
earned  for  them,  while  their  assailant  will  reap  all 
the  reward  to  which  he  may  be  entitled  by  such  an 
assault" ;  and  Johnson  continued  by  terming  the  de- 
cision as  "not  to  be  surpassed  in  my  judgment,  by 
any  opinion  pronounced  by  any  Judge  in  any  former 
case  in  that  tribunal."  To  this,  Thaddeus  Stevens, 
the  most  savage  of  the  Reconstructionists,  retorted 
that,  in  his  opinion,  the  decision,  "although  in  terms 
not  as  infamous  as  the  Dred  Scott  decision,  is  yet  far 
more  dangerous  in  its  operation  upon  the  lives  and 
liberties  of  the  loyal  men  of  this  country.  ...  If 
the  doctrine  enunciated  in  that  decision  be  true,  never 
were  the  people  of  any  country,  anywhere,  or  at  any 
time,  in  such  terrible  peril  as  are  our  loyal  brethren 
at  the  South";  and  he  spoke  of  "murderers  that 
were  being  turned  loose  under  the  Milligan  decision." 
John  A.  Bingham  of  Ohio,  in  the  House,  proposed 

1  S9th  Cong,^  id  Ses$.,  210,  251,  209,  speech  of  Jdmson,  Dec.  20,  1866,  Jan.  4, 
1867,  speech  of  Stevens,  Jan.  8,  1867.  See  also  Life  qf  Thaddeui  Stevens  (1918), 
by  James  A.  Woodbum. 


THE  MILLIGAN  CASE  171 

"sweeping  away  at  once  the  Court's  appellate  juris- 
dict]>n  in  all  cases** ;  and  he  said :  "If,  however,  the 
Cour.  usurps  power  to  decide  political  questions  and 
defy  t  free  people's  will,  it  will  only  remain  for  a 
people,  thus  insulted  and  defied,  to  demonstrate  that 
the  servant  is  not  above  his  lord,  by  procuring  a 
further  Constitutional  Amendment  and  ratifying  the 
same,  which  will  defy  judicial  usurpation,  by  annihilat- 
ing the  usurpers,  in  the  abolition  of  the  tribunal 
itself."  ^ 

Thomas  Williams  of  Pennsylvania  urged  a  bill  for 
the  concurrence  of  all  the  Judges  in  any  opinion  on 
a  constitutional  question.  "This  bill,  if  passed  into 
a  law,'*  a  newspaper  advocate  said,  "will  practically 
relieve  the  Supreme  Court  of  any  further  interference 
with  Congress  in  the  business  of  Southern  Recon- 
struction, and  it  may  then  operate  in  a  remarkable 
change  of  Southern  sentiment;  for  it  appears  that 
the  main  reliance  of  the  intractable,  ruling  classes 
of  the  South  now  is  in  the  Supreme  Court.  .  .  .  Nor 
are  these  things  the  mere  expedients  of  party  for  party 
purposes.  They  are  the  demands  of  a  great  revolu- 
tion, which  cannot  be  resisted  but  which  must  run  its 
course.    ^ 

In  the  midst  of  the  debates  over  these  measures 
a£Fecting  the  Court,  the  Radical  Reconstructionists, 
who  desired  to  see  all  participants  in  the  cause  of  the 
Confederacy  treated  as  traitors  and  denied  any  civil 
rights  or  privileges,  were  still  further  enraged  by  two 
decisions  of  the  Court,  rendered  on  January  14,  1867, 

1  S9ih  Cong,,  Sd  Sess.,  249,  286,  501  et  seq,,  Jan.  8,  4, 16,  21,  28,  1867.  This  sug- 
gestion of  limiting  the  appellate  jurisdiction  of  the  Court  was  first  made  by  the 
leading  Republican  paper  in  the  West,  the  Chicago  Tribune.  It  also  suggested 
a  statutory  requirement  of  the  concurrence  of  eight  Judges ;  see  New  York  World, 
Jan.  21,  1867,  in  criticism  of  this  proposal.  I 

*  New  York  Herald,  Jan.  23,  1867;  see  Cleveland  Herald,  Jan.  28,  1867,  approv-  j 

ing  a  bill  requiring  concurrence  of  two  thirds  of  the  Judges.  I 


\ 


\ 

\ 


172  THE  SUPREME  COURT 

in  Cummings  v.  Missouri  and  Ex  parte  Garland,  4 
Wall.  277,  333,  —  decisions  which  revealed  the  Court 
as  wholly  unaflfected  by  the  tumult  raised  by  its  Milli- 
gan  decision,  and  which  displayed  its  freedom  from 
prejudices  arising  from  the  late  war  and  its  utter  fair- 
ness towards  those  engaged  in  it.^  The  first  case  in- 
volved the  validity  of  the  provisions  of  a  State  Con- 
stitution requiring  certain  persons  (a  minister  of  the 
gospel  in  the  instant  case)  as  a  prerequisite  to  en- 
gaging in  their  pursuits,  to  take  an  oath  that  they 
had  not  supported,  aided  or  favored  by  act  or  word 
the  cause  of  the  Confederacy;  the  second  case  in- 
volved an  Act  of  Congress  of  January  24,  1865,  and 
a  Rule  of  Court  adopted  in  March,  1865,  in  pursuance 
of  the  Act,  requiring  a  similar  oath  before  an  attorney 
should  be  admitted  or  allowed  to  practice  before  the 
Court,  In  the  first  case,  David  Dudley  Field,  Mont- 
gomery Blair  and  Reverdy  Johnson  argued  for  the 
petitioner  against  John  B.  Henderson  and  G.  P, 
Strong  for  the  State  of  Missouri.  In  the  second, 
Reverdy  Johnson  and  Matt  H.  Carpenter  argued  for 
the  petitioner  and  Alexander  H.  Garland  (who  was 
later  Attorney-General  of  the  United  States)  also  filed 
a  brief  pro  se;  the  Attorney-General,  James  Speed, 
appeared  for  the  Government.  The  Court  held  the 
requirement  of  the  oath  in  both  cases  to  be  uncon- 
stitutional; but  again  it  was  closely  divided.  The 
four  Judges  appointed  prior  to  the  war  —  Wayne, 
Grier,  Nelson  and  Clifford  —  joined  with  Judge  Field, 
in  holding  that  the  framers  of  the  Constitution  in- 
tended to  guard  against  such  "excited  action  of  the 

1  The  N9W  York  World,  the  Washington  Chronicle  and  other  papers  announced 
as  early  as  Dec.  8,  1866,  that  the  constitutionality  of  the  ironclad  oath  case  had 
been  decided  by  the  Judges  in  conference,  by  a  majority  of  five  to  four  against  the 
radicals."  But  the  New  York  HerM  sUted,  Dec.  10,  1866,  that :  "  Chief  Jus- 
tice Chase  denied  the  rumor."    See  also  National  Intelligencer^  Dec.  18,  1866, 


THE  MILLIGAN  CASE  173 

States,  under  such  influences  as  these'';  that  '^the 
Constitution  deals  with  substance,  not  shadows.  Its 
inhibition  was  levelled  at  the  thing,  not  the  name. 
It  intended  that  the  rights  of  the  citizen  should  be 
secure  against  deprivation  for  past  conduct  by  legis- 
lative enactment,  under  any  form,  however  dis- 
guised.** Accordingly,  the  statutes  were  held  in- 
valid as  imposing  a  form  of  punishment  forbidden 
by  the  constitutional  prohibition  against  bills  of  at- 
tainder and  ex  post  jaxio  laws.  On  the  other  hand, 
Lincoln's  appointees  —  the  Chief  Justice  and  Judges 
Miller,  Swayne  and  Davis  —  supported  the  legis- 
lation as  a  desirable  protection  of  the  country  against 
disloyal  men,  and  as  fixing  proper  qualifications  for 
the  practice  of  professions ;  and  they  denied  that  the 
statutes  were  either  bills  of  attainder  or  ex  post  facto 
laws  within  the  meaning  of  the  Constitution.^ 

The  attacks  on  these  decisions  were  again  of  the 
most  violent  character.  The  Washington  Chronicle 
said  that  they  had  been  made  *Hhe  fortification  be- 
hind which  impertinent  rebels  may  renew  or  con- 
tinue their  war  upon  the  Government",  and  that 
*' dangerous  in  the  encouragement  they  have  extended 
to  traitors,  they  have  nevertheless  produced  a  reac- 
tion, which  will  not  stop  until  the  exact  relation  of 
that  tribunal  to  the  other  departments  of  the  Govern- 
ment is  absolutely  and  irrevocably  fixed."  The  New 
York  Herald  stated  that  they  were  of  the  highest  im- 
portance in  their  political  aspect,  and  it  again  urged 
a  reconstruction  of  the  Court,  "to  secure  such  inter- 
pretation of  the  Constitution  as  will  proclaim  the 
great  fixed  fact  that  the  war  for  the  Union  was  neither 
a  blunder  nor  a  failure  but  a  great  revolution."  Har- 
per*s  Weekly  said  that  they  were  merely  "another 

^  See  Ameriean  Law  Review  (1867),  I,  575, 


174  THE  SXJPREME  COURT 

proof  of  the  disposition  of  the  Court  to  withstand  the 
National  will  and  reverse  the  results  of  the  war."  ^ 
On  the  other  hand,  the  New  York  World  said:  "The 
decisions  are  an  additional  proof  of  the  Court's  su- 
periority to  party  passions  and  popular  clamor  *' ;  the 
Detroit  Free  Press  congratulated  the  people  "that 
their  liberties  are  safe  as  against  the  despotic  and 
treasonable  contentions  of  Congress,  at  least  until 
a  bloody  revolution  has  overthrown  the  Supreme 
Court  or  until  its  independence  and  usefulness  is  de- 
stroyed in  some  more  insidious  but  perhaps  more 
dangerous  manner";  and  the  National  Intelligencer 
said  that:  "It  may  suit  the  purposes  of  corrupt  and 
unscrupulous  partisans,  alike  in  the  press,  the  forums 
and  the  pulpit,  to  impugn  the  motives  of  the  learned 
Judges  who  interpret  the  organic  law  of  the  Nation 
under  a  solemn  sense  of  their  responsibilities ;  but  the 
plain  people  will  not  believe  that  they  can  be  swerved 
from  their  sworn  duty,  by  any  sinister  or  improper 
inducements.  Full  of  years,  and  full  of  honors,  with 
no  other  ambition  than  to  live  in  history  as  the  wise 
and  well  qualified  guardians  of  those  principles  which, 
embodied  in  the  Constitution,  constitute  at  once  the 
boast  and  safeguard  of  the  Nation,  they  are  as  in- 
capable of  being  seduced  into  partial,  much  less  polit- 
ical, decisions,  as  they  are  incapable  of  being  intimi- 
dated by  the  threats  of  brawling  politicians  or  the 
coarse  vituperation  of  unprincipled  editors.  In  an 
era  of  revolutionary  convulsion,  they  yield  neither  to 
the  passions  of  the   mob,  nor  the   invective  of  the 

^  Washington  Chronide,  Feb.  16,  1867 ;  New  York  Herald,  Jan.  16,  1867 ;  Bar- 
per*s  Weekly,  March  2,  1867;  New  York  World,  Jan.  15,  1867,  charging  Chief  Jus- 
tice Chase,  in  dissenting  in  these  cases,  as  "acting  a  most  unworthy  and  respon- 
sible part",  "acting  with  a  bias*',  since  he  had  ab«ady  advised  President  Lincobi 
in  regard  to  them;  Detroit  Free  Press,  Jan.  16,  1867;  National  IntsUigencer,  Jan. 
15,  1867;  the  Springfidd  Weekly  RepMiean,  Jan.  19,  1867,  noted  with  gratifica- 
tion that  the  division  of  the  Judges  was  not  baaed  on  political  linea. 


THE  MILLIGAN  CASE  175 

demagogue.  .  •  .  We  simply  congratulate  the  country 
that  though,  amid  the  clash  of  arms,  the  sacred  rights 
of  the  citizen  were  somewhat  infringed,  yet,  with  the 
return  of  peace,  the  Constitution  is  vindicated  in  all 
its  fuUness  and  integrity." 

The  eflFect  upon  Congress  was  to  strengthen  the 
demand  for  legislation  to  curb  the  Court ;  and  George 
S.  Boutwell  of  Massachusetts  at  once  introduced  a 
bill  in  the  House  to  nullify  the  Court's  decision  by 
providing  that  it  should  be  a  rule  in  all  the  Courts 
of  the  United  States  that  no  person  who  had  been 
engaged  in  the  Rebellion  or  supported  its  cause  should 
act  as  an  attorney  in  those  Courts.^  "It  is  an  offence 
to  the  dignity  and  respectability  of  the  Nation,"  he 
said,  "that  that  tribunal,  under  the  general  authority 
vested  in  it  under  the  Constitution  and  the  laws,  does 
not  protect  itself  from  the  contamination  of  rebels 
and  traitors,  until  the  rebellion  itself  shall  be  sup- 
pressed and  those  men  shall  be  restored  to  their  for- 
mer rights  as  citizens  of  this  country.  The  Supreme 
Court  failing  in  the  performance  of  this  high  and 
self-protecting  duty,  the  time  has  arrived  when  the 
Congress  of  the  United  States,  by  whose  breath  alone 
the  Supreme  Court  enacts  rules  of  any  sort,  or  ad- 
mits any  man  to  the  office  of  counsellor  or  attorney 
at  its  Bar,  should  assume  exact  and  specific  authority 
to  declare  by  solemn  law,  that  men  who  have  been 
guilty  of  murder  or  treason  or  bribery,  or  who  have 
raised  their  arms  to  strike  down  the  Government  of 
this  country,  shall  not  participate  in  the  administra- 
tion of  the  laws  of  the  land,  until  they  are  absolved 
from  their  armies." 

^  39th  Cong.,  2d  Ses$„  Jan.  22»  1867,  646-(r7S ;  8pnngfield  RepubHean,  Jan.  26, 
1867;  PhOaddphia  Inquirer,  Jan.  24,  1867;  see  also  the  accounts  of  thu  bill  in 
New  York  World,  Jan.  24,  1867;  National  InleUigenoar,  Jan.  16»  1867;  Boston 
i>at%  Adtmiiter,  Jan.  28^  1867. 


176  THE  SUPREME  COURT 

The  bill  did  not  meet  with  warm  support,  even  in 
the  Republican  press.  **The  bill  is  an  attempt  to 
neutralize  the  decision  of  the  Court.  It  strikes  the 
country  as  designed  to  place  these  two  branches  of 
the  Government  in  direct  and  open  antagonism  but 
that  Act  itself  will  probably  prove  a  nullity.  Con- 
gress is  not  the  final  judge  of  the  validity  of  its  own 
acts,  and  cannot  make  itself  so,  while  there  is  a  Con- 
stitution and  a  Supreme  Court/'  said  the  Spring- 
field Republican.  On  the  other  hand,  the  Philadel- 
phia Inquirer  warned  the  Court  that  either  it  would 
be  obliged  **to  succumb,  or  to  take  the  high  ground 
that  it  is  beyond  Congressional  control  in  matters  of 
detail  and  practices  connected  with  the  organization 
of  the  Court.  It  would  be  of  dangerous  consequence 
for  the  Judges  to  assume  any  such  view ;  as  the  Court 
is,  as  to  administration,  constituents,  and  regulation, 
entirely  within  the  authority  of  Congress  and  the  laws." 

Boutwell's  bill  and  other  corrective  measures  failed 
of  adoption.  Nevertheless,  the  radical  attitude  of 
the  majority  portended  trouble  for  the  future,  and 
was  truthfully  described  by  a  Democratic  Congress- 
man, when  he  said  in  one  of  the  debates  that,  since 
the  decisions  of  the  Court  were  "in  irreconcilable 
conflict  with  all  the  leading  measures  and  policies 
of  the  dominant  party  in  Congress,  and,  by  the  plain- 
est logical  sequence,  pronounce  judgment  of  con- 
demnation against  them  all  in  advance,  hence  arises 
the  growing  hostility  of  radicalism  towards  that  great 
tribunal.  The  country  may  well  anticipate  an  early 
attempt  by  the  radical  despotism,  that  now  claims 
to  be  the  'Nation'  and  to  measure  its  power  by  its 
own  will,  to  reduce  that  last  citadel  of  National  safety 
to  its  control,  and  to  make  the  Judges  mere  clerks, 
to  record  as  law  the  edicts  of  party  and  caucus." 


CHAPTER  THIRTY 

BECONSTRUCTION 
1867-1869 

Though  exceedingly  apprehensive  as  to  the  attitude 
of  the  Court  toward  its  proposed  Reconstruction  leg- 
islation, Congress  did  not  allow  itself  to  be  deflected 
from  its  firm  purpose  to  adopt  such  measures  as  it 
believed  imperative.  Accordingly,  in  March,  1867, 
it  proceeded  to  enact  a  series  of  statutes  (over  the 
constitutional  objections  raised  by  Presidential  veto), 
providing  for  military  government  in  the  Southern 
States.^ 

Within  three  weeks  after  their  passage,  the  long- 
expected  attempt  to  obtain  a  ruling  of  the  Court  upon 
the  validity  of  military  government  in  time  of  peace 
was  consummated,  when,  on  April  5,  1867,  a  motion 
was  made  by  Robert  J.  Walker,  Alexander  H.  Garland 
and  William  L.  Sharkey  for  leave  to  file  an  original 
bill  in  equity  in  the  Supreme  Court  on  behalf  of  the 
State  of  Mississippi,  to  enjoin  '^Andrew  Johnson,  a 
citizen  of  the  State  of  Tennessee  and  President  of  the 
United  States  and  his  officers  and  agents  appointed 
for  that  purpose,  and  especially  E.  O.  C.  Ord,  assigned 
as  mUitary  commander  of  the  district  .  .  .  from  execut- 
ing or  in  any  manner  carrying  out  the  Acts  of  March  3, 

1  See  Act  of  March  2,  1867;  Act  of  March  23, 1867;  Act  of  July  10, 1867;  Act 
of  March  11,  1868;  and  the  Act  of  June  U,  1868.  See  also  History  of  the  Ream- 
struetion  Measures  qftheSM  and  40th  Congresses  1865^8  (1868),  by  Henry  Wilson ; 
MilUary  Oovemment  cf  Southern  Territory,  by  A.  H.  Carpenter,  Amer,  Hist,  Ass. 
Rep.  (1900),  I. 


178  THE  SUPREME  COURT 

and  25,  1867.^  Attorney-General  Stanbery  objected 
to  the  filing  of  the  bill  on  the  ground  that  it  contained 
"matter  not  fit  to  be  received."  The  occasion  was 
thus  described  by  one  who  was  present.  "  Those  who 
attended  the  Court-room  were  witnesses  to  one  of  the 
most  significant  and  remarkable  scenes  which  ever 
occurred  in  any  hall  of  justice.  William  L.  Sharkey 
and  Robert  J.  Walker  as  counsel  for  the  people  of  the 
State  of  Mississippi  rose  in  their  places  and  asked 
leave  to  file  an  injunction,  restraining  the  President 
and  military  commanders  from  enforcing  the  Recon- 
struction Act,  on  the  ground  of  its  unconstitutionality. 
For  the  first  time  in  the  history  of  any  nation,  the  legal 
representatives  of  the  participants  in  an  organized  re- 
bellion, defeated  in  the  field,  were  permitted  to  appear 
in  Court,  not  to  defend  their  clients  on  trial,  but  to  ar- 
raign and  deny  the  authority  of  the  law-making  power, 
and  to  plead  anew  the  issues  of  the  cause  already  de- 
cided by  the  sword.  After  accepting  the  terms  of  sur- 
render, they  propose  in  the  Supreme  Court  to  test  the 
very  right  admitted  by  their  surrender.  No  greater 
effrontery  on  the  part  of  insurgents  and  rebels  against 
legal  authority  has  ever  been  witnessed;  and  no  in- 
stance on  the  part  of  any  other  government  can  be 
quoted,  as  this  in  which  the  highest  tribunal  of  the 

^  Ex-Judge  John  A.  Campbell,  over  six  montliB  before,  was  preparing  a  suit  to  test 
the  validity  of  the  military  tribunals  which  had  been  established  by  President  John- 
son in  Mississippi.  In  a  letter  to  Benjamin  R.  Curtis,  July  9^  1866,  Campbell 
wrote  that  he  had  just  been  to  Washington  in  connection  with  the  case  of  a  super- 
vising agent  of  the  Treasury  not  connected  with  the  military  service  and  charged 
with  appropriating  captured  cotton  and  **in  the  clutches  of  a  military  commission 
at  Mobile.  It  was  a  good  case  to  try  the  potency  of  these  *  new  minted  judicatures*, 
as  Piynne  styled  Strafford's  militaiy  commissions  that  were  trying  men  'by  an  ar- 
bitrary, summary,  illegal  and  martial  proceeding,  without  any  lawful  presentment 
or  trial  by  a  sworn,  impartial  able  jury,  diametrically  opposite  to  the  fundamental 
laws,  customs,  great  charters,  statutes  of  the  realm,  and  inherent  liberty  of  the  sub- 
ject.' .  •  .    I  hope  that  D ,  who  is  not  a  guilty  criminal,  will  be  allowed  a  trial 

by  a  Court  and  not  delivered  over  to  the  military  commission's  ten'der  mercies. 
The  record  in  his  case  is  a  curious  specimen  of  *  Military  Justice'  of  which  I  am  toU 
there  is  a  Bureau  at  Washington."    Benjamin  A.  Curtu  MS8, 


RECONSTRUCTION  179 

country  patiently  sits  to  hear  arguments,  which,  if 
admitted,  would  declare  the  war  for  the  Union  to  have 
been  unjust  and  oppressive."  And  the  Independent's 
Washington  correspondent  wrote :  "A  few  rebel  leaders 
of  the  proscribed  class  are  trying  to  break  down  the 
Reconstruction  Act  through  the  Supreme  Court.  .  .  . 
They  cannot  succeed.  .  •  .  Congress  found  a  way 
to  carry  its  plans  into  execution  against  the  opposi- 
tion of  the  President,  and  it  is  able  to  sense  means  to 
carry  out  its  purposes  if  the  Supreme  Court  puts  itself 
in  the  way.  The  proceedings  yesterday  in  Court  in- 
dicate that  the  President  will  execute  the  Act  and  that 
he  will  give  no  open  encouragment  to  the  rebel  Gov- 
ernors," ^  On  April  12,  the  power  of  the  Court  to 
exercise  jurisdiction  over  the  President  was  argued. 
The  petitioners  relied  on  Chief  Justice  Marshall's  de- 
cision in  the  Burr  treason  trial,  sixty  years  previous, 
sustaining  the  right  of  the  Court  to  issue  a  subpoena 
duces  tecum  to  President  JeflFerson.  The  Attorney- 
General  argued  vigorously  as  to  the  extraordinary 
results  which  would  follow  from  an  attempt  by  the 
Judiciary  to  control  the  acts  of  the  Executive.  "The 
scene  was  the  most  notable  that  has  been  witnessed  in 
the  Chamber  of  the  Supreme  Court  for  a  long  time,** 
wrote  a  newspaper  correspondent.  "One  marked 
the  inteUectual  face  of  Mr.  Trumbull,  the  fine 
forehead  and  weak  mouth  of  Charles  O'Conor,  the 

>  Independent,  April  10, 1867 ;  the  New  York  Herald,  April  6, 1867,  printed  an  ed- 
itorial headed  "  Miasiflsippi  before  the  Supreme  Court.  The  Old  SouUiem  Twaddle 
bat  a  moat  important  movement" ;  and  said  that  the  decision  "will  at  all  events, 
from  the  gravity  of  the  subject,  be  wuted  for  with  the  deepest  interest  by  all  par- 
ties." The  New  York  World,  April  4,  11,  1867,  said  it  thought  the  Court  would 
evade  the  issue,  and  that  it  did  not  suppose  Sharkey  himself  had  "any  sanguine 
hope  of  success."  The  Springfield  RepubHean,  April  IS,  1867,  said  that  "Judge 
Sharkey  denies  that  the  President  had  anything  to  do  with  his  attempt.  ...  He 
says  that  he  does  not  know  the  President's  opinion  on  the  subject,  and  when  be 
notified  him  of  his  intention  to  petition  for  an  injunction  the  President  expressed 
neither  approval  nor  disapproval." 

See  Rixnutrtuium  and  the  ConstiUUion  (lOOS),  by  John  W.  Burgess,  144  ei  eeq. 


180  THE  SUPREME  COURT 

Mephistophelian  features  of  Montgomery  Blair,  the 
cunning  eyes  of  Robert  J.  Walker,  the  classic  pro- 
file of  Roscoe  Conkling,  the  white  hair  and  florid 
countenance  of  Judge  Sharkey,  the  mastiff  jaws  of 
Reverdy  Johnson,  Ex-Senator  Harris  genial  and  digni- 
fied, the  Attorney-General  bland  and  courteous,  Mr. 
Cowan  seemingly  troubled  with  self-consciousness,  the 
Ex-Attomey-General,  Mr.  Black,  jocular  and  uneasy, 
and  Governor  Jenkins  of  Georgia  grave  and  courtly. 
.  .  .  The  Attorney-General  spoke  an  hour  and  was 
listened  to  with  the  closest  attention  throughout.  Tall, 
spare,  angular  in  action,  of  the  sweetest  personal  cour- 
tesy, Mr.  Stanbery  is  a  most  unique  type  of  an 
old-fashioned  gentleman,  admired  by  his  friends  and 
seemingly  respected  by  everybody .  .  .  .  TheAttomey- 
Greneral's  manner  was  quite  as  impressive  as  his  lan- 
guage. .  .  .  He  spoke  with  a  clear  voice,  and  held 
the  fixed  notice  not  only  of  the  audience  and  of  the 
attorneys  but  of  every  member  of  the  Supreme  Bench." 
Walker's  argument  was  described  as  of  little  interest 
and  as  ^^  adroit  and  specious.''  ^' Small,  dapper,  with 
a  squatty  appearance,  sharp  of  featiu*e  and  sharp  of 
voice,  with  foxy  manners  and  blinking  eyes,  Mr. 
Walker  is  quite  as  imique  in  his  way  as  the  Attorney- 
General.  Equally  easy  and  courteous,  he  lacks  Mr. 
Stanbery's  frankness  and  earnestness."  Another  cor- 
respondent wrote:  "The  Supreme  Court  presented 
a  striking  scene.  It  was  crowded  with  distinguished 
officials,  great  lawyers  and  curious  civilians.  Two 
rebel  States,  which  for  four  years  fought  with  all  their 
ability  to  overthrow  the  Government  and  to  escape 
from  its  control,  appeared  in  the  Court  to  claim  that 
during  all  that  four  years  of  cruel  war,  they  were  States 
in  the  Union  and  entitled  to  the  same  immunities  and 
privileges  as  New  York,  Ohio  and  any  of  the  loyal 


RECONSTRUCTION  181 

States.  This  was  a  fine  illustration  of  the  humility 
of  our  'conquered  rebels/"  To  this  criticism,  the 
New  York  World  replied:  "The  South  has  heretofore 
refused  to  recognize  the  Supreme  Court  as  the  ultimate 
arbiter  between  the  States  and  the  Federal  Govern- 
ment in  disputed  questions.  The  present  applications 
ought,  therefore,  instead  of  the  reprobations  they  have 
called  forth  in  some  quarters,  to  be  accepted  in  a  spirit 
of  congratulation,  as  a  signal  token  of  the  great  change 
public  opinion  has  undergone  in  the  South/'  ^ 

Although  the  Independent's  correspondent  stated 
that:  "There  is  but  one  opinion  here  among  men  of 
all  parties,  as  to  the  result;  the  Court  will  refuse  to 
grant  leave;  this  tribunal,  already  suspecting  that, 
as  now  constituted,  it  is  regarded  as  a  diseased  member 
of  the  body  politic,  will  not  run  the  risk  of  amputa- 
tion by  touching  the  edged  tools  of  Sharkey  and 
Walker,"  there  were  others  who  were  not  so  confident 
as  to  the  Court's  action ;  and  Francis  Lieber  wrote  to 
Charles  Sumner:  "I  imagine  that  at  no  time  in  our 
history  have  there  been  so  many  ears  pricked  up,  in 
all  portions  of  our  country,  for  a  coming  decision,  as 
at  present,  for  the  decision  of  the  Supreme  Court.  •  .  . 
As  it  appears  to  me,  the  Court  has  only  to  decide  be- 
tween two  laws  presumed  to  conflict  —  a  necessary 
consequence  of  an  enacted  (or  written)  Constitution. 
It  leads  to  many  inconveniences;  but  where  parties 
contend,  justice  must  be  done.  If  we  could  obtain 
some  archangels  to  sit,  after  each  Congress,  to  decide 
on  the  laws  of  Congress,  then  we  might  make  consti- 

^  BoaUm  Daily  AdvertUer,  April  IS,  1867;  Independnd,  April  16,  17,  1867;  see 
Pkiladdpkia  Inquirer,  April  18,  1867,  for  fuU  report  of  the  argumenta  of  counsel ; 
New  York  World,  April  17, 1867.  Harper's  Weekly,  April  20th,  1867,  in  an  editorial 
headed  "Rip  Van  Winkle  in  the  Supreme  Court",  said  that  the  arguments  set  forth 
in  great  amplitude  "the  old  fallacy,  thoroughly  exposed  and  exploded,  that  once  a 
State,  always  a  State**,  and  termed  them  "a  desperate  effort  to  undo  in  a  Court 
the  decision  of  a  war." 


18ie  THE  SUPREME  COURT 

tutionality  a  general  question ;  but,  with  all  respect  for 
our  Supreme  Court,  or  for  many  of  the  Judges  at  least,  I 
have  never  seen  the  angelic  wings  penetrating  the  gown."  ^ 

On  April  15,  1867,  within  three  days  after  the  argu- 
ment, the  Court,  through  the  Chief  Justice,  rendered 
a  decision  in  which  it  avoided  the  delicate  issue  as  to 
its  power  to  control  Executive  acts  in  general,  and 
contented  itself  with  holding  that,  inasmuch  as  the 
actions  involved  in  this  case  were  not  ministerial  and 
required  Executive  discretion,  the  Court  "has  no  juris- 
diction of  a  bill  to  enjoin  the  President  in  the  perform- 
ance of  his  official  duties,  and  no  such  bill  ought  to 
be  received  by  us/'  * 

Undiscouraged  by  this  failure,  counsel  for  the  States 
of  Georgia  and  Mississippi  made  another  attempt  to  test 
the  validity  of  the  Reconstruction  legislation  by  ask- 
ing leave  to  file  bills  praying  for  injunctions  to  restrain 
Secretary  of  War  Stanton  and  General  Grant  from  exe- 
cuting the  provisions  of  the  Reconstruction  Acts,  and 
setting  forth  that  the  design  of  these  Acts  was  to  annul 
the  existing  State  Governments  and  to  subject  the  peo- 
ple to  military  rule.  The  Court  deciding  to  allow  these 
bills  to  be  filed,  on  consent  of  the  Attorney-General, 
they  were  set  down  for  immediate  argument.'    Con- 

1  Lif$  and  LdUn  qf  FraneU  LUher  (1882),  letter  kA  April  14,  1867. 

'  Missisnpjn  v.  Johnson^  4  Wail.  475. 

*See  Cleveland  HercJd,  April  15,  27,  1867:  "Sharkey's  New  Rebellioxi,  fts  de- 
veloped in  the  Supreme  Court  today,  drew  forth  a  motley  audienoe,  who  crowded 
the  Court-room.  .  .  .  Most  of  them  were  rebels  and  sympathisers  who  did  not 
look  as  if  they  were  aware  that  the  late  rebellion  was  over.  .  .  .  The  clear,  strong 
argument  of  the  Attorney-General  seemed  easily  to  overbear  the  formidable  array 
of  legal  talent  engaged  in  this  new  crusade  against  the  peace  of  the  country  — 
Ewing,  Johnson,  Black,  O'Conor,  Edgar  G>wan,  Sharkey,  Walker.**  See  also 
especially  Philadelphia  Inquirer,  April  17, 1867;  BoeUm  Daily  Adeeriieer,  April  16, 
18, 10, 1867.  The  Springfield  Weekly  Republican,  April  20, 1867,  said  that :  "There 
is  no  expectation  that  the  Court  will  grant  the  injunction  prayed  for,  whatever 
may  be  the  opinions  of  the  Judges  as  to  the  constitutionality  of  the  law.  Even  if 
the  Court  should  grant  the  petition,  final  action  will  not  be  taken  till  next  Decem- 
ber, and  by  that  time  Reconstruction  will  have  been  completed  in  nearly  every 
Southern  State.    We  have  no  doubt  the  Southern  people  prefer  to  have  it  so." 


RECONSTRUCTION  188 

servatives  and  Radicals  alike  approved  this  course,  both 
believing  that  it  was  better  that  the  Court  should  say 
at  once  whether  it  would  take  jurisdiction  in  this  man- 
ner over  the  Reconstruction  question.  And  the  Radi- 
cals expressed  the  view  that,  if  the  Court  should  now 
decide  against  the  bill  at  the  present  Term :  "The  whole 
South  will  understand  at  once  that  the  Court  will  not 
step  in  between  Congress  and  rebels,  not  at  present 
certainly,  and  not  early  enough  in  any  event  to  do  any 
good  or  harm.  As  a  matter  of  course,  in  due  time,  a 
case  can  be  made  up  in  one  of  the  inferior  Courts  against 
the  Military  Act ;  but  a  decision  of  the  Supreme  Court 
could  not  be  reasonably  expected  before  1869.  By 
that  time  the  rebellious  States  will  be  thoroughly  re- 
constructed." ^  The  case  was  elaborately  argued  on 
April  26,  May  1,  3,  6,  1867,  by  Charles  O'Conor  of 
New  York  and  Robert  J.  Walker  of  Mississippi  in  be- 
half of  the  States.  They  were  opposed  by  Attorney- 
General  Stanbery,  who,  though  stating  that  person- 
ally he  was  opposed  to  the  Reconstruction  measures, 
nevertheless,  made  an  exceptionally  powerful  argument 
against  the  jurisdiction  of  the  Court  over  the  purely 
political  question  presented  by  the  bills  in  equity  before 
it.  "The  little  Court-room  was  filled  but  not  at  any 
time  crowded.  One  fourth  of  the  spectators  were 
ladies,  some  of  them  well-known  secessionists,"  wrote 
a  correspondent.  "The  attendance  of  young  and  im- 
known  lawyers  was  quite  large.  For  the  rest,  there 
was  Chief  Justice  Cartter  of  the  District  Court,  shrewd 
and  practical  in  every  feature;  good  old  Tom  Ewing 
with  his  bald  head  and  jovial  double  chin;  Senator 
Morgan,  grave  and  dignified;    the  Secretary  of  the 

1  Independent,  April  25,  1867.  On  May  2,  it  said :  "There  is  but  one  way  for 
the  Court  to  obtain  jurisdic^on  of  the  Reconstruction  Acts  and  that  is  by  appeal 
from  a  State  Court.  To  do  this  will  take  so  long  that  the  South  can  obtain  no  re- 
lief." 


184  THE  SUPREME  COURT 

Treasury,  bland  and  unruffled;  Thomas  J.  Durant, 
the  sad-faced  and  thin  featured  New  Orleans  Union- 
ist; Judge  Black,  with  his  sardonic  smile  and  white 
eyebrows  and  black  wig ;  rugged  Joshua  Hill,  the  Geor- 
gia Loyalist;  and  a  goodly  number  of  white-haired 
Washington   Rebel   sympathizers."  ^ 

Only  ten  days  later,  the  Court  rendered  a  decision 
dismissing  the  suits,  and  holding  that  they  called  for 
an  adjudication  on  rights,  not  of  persons  or  property, 
but  of  a  political  character,  of  sovereignty,  of  corporate 
existence  as  a  State,  and  that  it  had  no  jurisdiction 
over  such  a  controversy  —  Georgia  v.  Stanton^  6  Wall, 
50.  "Undoubtedly,  it  is  no  light  matter,"  said  the 
Nation^  "that  the  highest  Court  in  the  land  should 
thus  disclaim  the  power  of  enquiring  into  the  constitu- 
tionality of  an  Act  of  Congress  destroying  the  govern- 
ment of  ten  States.  For  it  must  be  observed  that 
every  word  of  Mr.  Stanbery^s  argument  would  be  just 
as  applicable  if  Massachusetts,  instead  of  Georgia,  were 
the  complainant,  and  if  Congress  had  undertaken  to 
overthrow  a  State  government  which  it  at  the  same 
time  admitted  to  be  perfectly  legitimate.  No  State  in 
the  Union,  therefore,  can  rely  upon  the  Supreme  Court 
for  protection  against  the  usurpation  of  Congress.  This 
is  a  grave  fact  which  deserves  serious  consideration, 
and  yet,  notwithstanding  all  the  perils  of  such  a  de- 
cision, it  is  dear  that  it  is  justified  by  reason  and  ex- 

^  Boston  Daily  Advertiser,  April  97,  1867;  see  also  especially  Philadelpkia  In^ 
quirer,  April  9»,  1867;  Nation,  May  %,  0,  16,  1867;  Harper* s  Weekly,  May  11. 
1867.  Welles  wrote  in  his  diaxy,  April  20, 1867 :  "The  injunction  cases  in  behalf 
of  Georgia  and  Mississippi  have  been  before  the  Court  and  are  still  pending.  At- 
torney-General and  Mr.  O'Conor  made  arguments  on  Friday.  The  latter  is  evi- 
dently more  of  a  lawyer  than  statesman,  studies  law  more  than  Constitution,  cases 
more  than  governmental  principles.  Nothing  will  be  got  from  the  Court,  I  appre- 
hend, and  there  are  embarrassments  in  the  case.  Tlie  Attom^-General*s  position 
cannot  be  subscribed  to  in  all  respects.  Why  O'Conor  and  his  associates  make  no 
use  of  the  recent  decision  of  the  Court  in  MiUigan's  case,  I  don't  understand.  Con- 
gress under  color  of  law,  cannot  invest  brigadiers  with  power  to  abolish  jury  trial 
or  to  suspend  the  privilege  of  habeas  corpus  in  time  of  peace." 


RECONSTRUCTION  185 

perience.  .  .  .  Purely  political  controversies  are,  of 
all  things,  the  least  amenable  to  the  jurisdiction  of 
a  Court.  The  origin  and  existence  of  a  State,  the  exist- 
ence and  justice  of  a  war,  or  the  validity  of  a  revolu- 
tionary change  in  the  form  of  government,  are  all  of 
them  questions  which  no  nation  ever  allowed  Courts  to 

determine The  immediate  results  of  the  decision 

just  rendered  by  the  Court  are  unqualifiedly  beneficial. 
Even  if  the  suit  had  been  merely  entertained  without 
a  decision  upon  the  merits,  the  effect  upon  the  South 
must  have  been  injurious,  while  it  is  difficult  to  es- 
timate the  mischief  that  might  have  been  wrought  by 
the  entire  success  of  the  complainant.  It  could  not 
have  saved  the  State  from  the  ultimate  control  of  Con- 
gress, and  it  woidd  have  introduced  new  elements  of 
evil  into  the  conflict.  We  think  that  every  intelli- 
gent Southerner  —  certainly  every  shrewd  lawyer  or 
politician  —  feels  relieved  by  the  decision.  Certainly, 
it  is  a  cause  for  congratulation  among  all  friends  of 
regulated  liberty.  The  speedy  reorganization  of  the 
South  under  the  Reconstruction  Act  is  now  made  all 
but  certain."  The  Springfield  Republican  said  that 
the  decision  was  ""what  all  sensible  persons  expected. 
•  .  .  The  Court  is  not  going  to  establish  so  danger- 
ous a  precedent."  ^ 

One  last  attempt  was  now  made  by  counsel  for  Mis- 
sissippi to  amend  their  bill  so  as  to  show  a  property  in- 
terest in  the  State  in  matters  affected  by  the  actions 
of  the  defendant  military  commanders ;  but  this  motion 
was  denied  by  an  equally  divided  Court;  Wayne, 
Clifford,  Nelson  and  Field  being  in  favor  of  granting 

^Nation,  May  28,  1867;  SpringfiM  Wuldy  RejnMiean,  May  18,  1867.  The 
Philadelj^na  Inquirer,  May  17, 1867,  spoke  of  "those  remarkable  geniuses,  Sharkey 
and  Walker  .  .  .  the  first  to  imagine  that  an  Act  of  Congress  might  be  nullified 
by  the  special  injunction  of  a  Court  of  equity  —  an  original  doctrine  which  the 
Court  have  not  yet  comprehended."  See  also  for  an  interesting  criticism  of  Black's 
argument,  WashingUm  Weekly  Chronide,  May  18, 1867. 


186  THE  SUPREME  COURT 

leave  to  amend,  the  Chief  Justice,  Swayne,  Miller  and 
Davis  being  opposed.  Owing  to  the  absence  of  Judge 
Grier,  who,  had  he  been  present,  would  have  probably 
favored  the  motion,  the  question  whether  the  Court 
could  interfere  with  the  Reconstruction  legislation  in 
order  to  protect  the  public  property  of  a  State  remained 
undecided ;  and  Congress  was  left  with  a  free  hand.^ 
While  the  decision  of  the  Court,  that  it  would  not  take 
jurisdiction  when  the  facts  of  the  case  involved  only 
political  and  not  personal  or  property  rights,  enounced 
no  new  doctrine  of  law,  the  Democrats  throughout  the 
coimtry  were  inclined  to  believe  that  the  Court  was 
evading  its  responsibilities  by  refusal  of  jurisdiction, 
and  criticized  it  for  its  course.  "What  is  to  become 
of  the  Supreme  Court  of  the  United  States  —  the  con- 
servative branch  of  the  Government?"  wrote  James 
Buchanan.  "When  I  recall  the  names  of  the  pure, 
able  and  venerable  men  who  have  filled  the  office  of 
Chief  Justice  from  John  Jay  to  Roger  B.  Taney,  and 
witness  the  efforts  of  the  present  Chief  Justice  to  drag 
the  judicial  ermine  through  Uie  dirt  to  propitiate 
radicals,  I  cannot  help  thinking  we  have  fallen  on  evil 
times.    But  I  am  now  an  old  fogy."  * 

Though  the  Reconstruction  legislation  had  thus  be- 
come safe  from  injunction,  its  constitutionality  was 
brought  before  the  Court  at  the  next  Term,  in  De- 
cember, 1867,  in  an  unexpected  manner,  through  the 
operation  of  a  statute  recently  enacted  by  Congress 
for  the  protection  of  Federal  officials  and  other  loyal 
persons  against  adverse  action  by  the  Courts  and  offi- 
cials in  the  late  Confederate  States.    Under  this  new 

^  Boiton  Daily  Advertiser,  May  17, 1867 ;  the  Springfidd  Weekly  RepMican,  May 
18, 1867,  said  that  the  motion  to  amend  by  asking  for  an  injunction  against  Gen. 
Ord's  taking  possession  of  the  Mississippi  State  Treasury,  was  denied  by  a  divided 
Court,  the  names  of  the  Judges  being  withheld.  **  All  legal  obstacles  to  Reconstruc- 
tion are  now  remoYed." 

>  Works  qf  James  Buchanan  (1910),  XI,  letter  of  June  11,  1867. 


RECONSTRUCTION  187 

Act  of  February  5,  1867,  appeals  from  the  Federal 
Circuit  Courts  to  the  Supreme  Court  in  habeas  corpus 
cases,  which  had  hitherto  been  allowed  in  a  very  limited 
class  of  cases,  were  now  extended  to  "all  cases  where 
any  person  may  be  restrained  of  his  or  her  liberty,  in 
violation  of  the  Constitution  or  of  any  treaty  or  law  of 
the  United  States."  By  an  ironic  stroke,  this  Act 
designed  to  enforce  the  Reconstruction  measures  was 
now  seized  upon  as  a  weapon  to  test  their  validity.  An 
editor  named  McCardle,  who  had  been  arrested  and 
held  for  trial  by  a  military  commission  in  Mississippi 
under  authority  of  one  of  the  first  Reconstruction  Acts, 
petitioned  for  a  writ  of  habeas  corpus  in  the  Federal 
Circuit  Court,  and  after  an  adverse  decision  took  an 
appeal  to  the  Supreme  Court.  On  January  10,  1868, 
Jeremiah  S.  Black,  counsel  for  McCardle,  moved  that 
the  case  be  advanced  for  speedy  hearing.  Attorney- 
General  Stanbery  stated  to  the  Court  that,  as  he  had 
already  oflBcially  advised  the  President  that  the  Re- 
construction Laws  were  unconstitutional,  he  could 
not  act  on  behalf  of  the  Government,  and  that  he  had 
so  notified  the  commanding  military  officials  concerned. 
On  January  17,  the  Court  granted  the  motion  and  set 
the  case  for  the  first  Monday  in  March.  "This  deci- 
sion," said  a  leading  Republican  paper,  "gives  satis- 
faction to  the  Radicals,  as  they  hope  by  that  time  to 
have  affairs  in  such  condition  in  the  States  of  Mis- 
sissippi and  Alabama  that,  even  if  the  Court  decides 
the  Reconstruction  Acts  unconstitutional,  it  will  not 
seriously  impede  the  work  in  those  States.*'  ^  It  was 
reported  that  the  Judges  were  divided  on  the  question 

^  See  especially  as  to  the  proceedings  in  this  case,  Indianapolis  Journal,  Jan.  18, 
1868;  Chicago  RepMiean,  Jan.  11,  17,  18,  22,  1868.  On  Feb.  1,  it  said  that: 
''The  speech  of  Jerry  Black  was  an  extremely  bitter  copperhead  harangue  on  State- 
Rights  and  the  unconstitutionality  of  the  Reconstruction  laws.  He  evidently 
argued  the  McCardle  case  eon  amore," 


188  THE  SUPREME   COURT 

of  advancing,  as  follows  —  Judges  Grier,  Clifford, 
Nelson,  Davis  and  Field,  against  Chief  Justice  Chase, 
Judges  Swayne  and  Miller;  and  the  newspapers  be- 
lieved that  there  would  be  a  similar  division  on  the  con- 
stitutionality of  the  laws.  Before  the  final  hearing, 
however,  vigorous  arguments  were  heard  by  the  Court, 
on  January  31  and  February  1,  on  its  right  to  take 
jurisdiction  of  the  case  under  the  new  habeas  corpus 
statute,  Jeremiah  S.  Black,  David  Dudley  Field  and 
William  L.  Sharkey  appearing  for  McCardle,  and  Matt 
H.  Carpenter,  Lyman  Trumbull  and  James  Hughes  for 
the  Government. 

Meanwhile,  nunors  that  the  Court  intended  to  hold 
the  Reconstruction  Laws  invalid,^  and  the  fact  that  the 
impeachment  of  President  Johnson  was  already  being 
discussed,  had  convinced  the  Reconstructionists  in 
Congress  of  the  necessity  of  some  form  of  action  which 
shoidd  save  their  imperiled  legislation.  Accordingly, 
with  the  intent  of  averting  such  an  adverse  decision 
by  the  Court,  the  Judiciary  Committee  of  the  House 
reported  a  bill  to  provide  that,  in  any  case  involving 
the  validity  of  a  law  of  Congress,  two  thirds  of  the  Judges 
must  concur  in  an  opinion  adverse  to  the  law.'  In 
the  debate  which  ensued,  the  Court  was  warmly  de- 
fended by  John  V.  L.  Pruyn  of  New  York  and  Samuel 
S.  Marshall  of  Illinois,  the  latter  stating  that  he  con- 

^The  Springfidd  ReptMiean,  Jan.  10,  1868,  speakmg  of  the  rumor  that  the 
Court  was  to  hold  the  laws  invalid  by  a  vote  ol  ^ve  to  three,  said :  "It  is  not 
easy  to  understand  why  Congress  should  be  disturbed  about  it.  Mr.  Stevens 
always  said  that  these  Acts  and  much  other  legislation  for  the  South  were 
'outside  of  the  Constitution',  and  the  only  real  support  has  been  found  in  the 
supposed  right  of  Congress  to  exercise  the  war  power  over  conquered  States.  Of 
course,  the  Constitution  recognises  no  such  power."    Ibid.,  Jan.  25,  1808. 

s  40ih  Ccng.,  ed  Se$$.,  478  si  $eq.  The  bill  was  sUted  by  Thomas  Williams,  Jan. 
IS,  1868,  to  be  a  copy  of  a  bill  introduced  in  the  last  Congress  "which  seemed  at 
the  time  of  its  introduction  to  startle  the  profession,  and,  to  some  extent,  the 
country  at  large."  See  especially  speech  by  Wilson  of  Iowa,  Jan.  14,  1868,  4M- 
498,  attacking  Judges  Swayne  and  Chief  Justice  Chase  and  defending  Judge  Field 
and  the  Court  against  Radicalism. 


RECONSTRUCTION  189 

sidered  the  bill  "revolutionary  and  dangerous  .  .  . 
one  of  the  worst  of  the  revolutionary  measures  brought 
forward  to  subvert  and  destroy  the  institutions  of  our 
country,  which  have  caused  such  widespread  gloom 
and  despondency.  .  .  .  This  measure  is  hurried 
through  here  this  morning  to  prevent  an  adjudication 
of  the  validity  of  their  motley  Reconstruction  Acts. 
...  It  is  a  confession  of  guilt  on  the  part  of  the 
majority.  It  is  evident  that  they  feel  and  know  in 
their  hearts  that  their  legislation  will  not  bear  inves- 
tigation by  a  legal  tribunal,  made  up  now  principally 
of  members  of  their  own  party,  placed  there  by  their 
own  favored  President."  George  W.  Woodward  of 
Pennsylvania  declared  that  Congress  had  no  power 
to  prescribe  the  number  of  Judges  necessary  for  a  de- 
cision, or  to  dictate  to  the  Court  how  it  should  decide 
constitutional  questions.  On  the  other  hand,  in  sup- 
port of  the  measure,  Rufus  P.  Spalding  of  Ohio  de- 
clared that  "for  everything  except  its  official  life,  that 
tribunal  must  look  to  an  Act  of  Congress'' ;  and  John 
A.  Bingham  of  Ohio,  in  a  savage  onslaught,  urged  that 
as  Congress  had  full  power  over  the  Court,  it  could 
even  limit  its  number  to  three,  of  which  two  or  even 
three  shoidd  be  required  as  a  quorum.^  The  bill  passed 
the  House  by  a  vote  of  one  hundred  and  sixteen  to 
thirty-nine,  and  it  was  warmly  supported  by  the  Radi- 
cal Republican  press.'    "There  is  danger  of  an  adverse 

^  James  F.  WUson  of  Iowa  proposed  to  amend  the  Committee  amendment  as 
follows:  "Provided  however,  that  if  any  Circuit  or  District  Court  of  the  United 
States  shall  adjudge  any  Act  of  Congress  to  be  unconstitutional  or  invalid,  the 
judgment,  before  any  further  proceeding  shall  be  had  upon  it,  shall  be  certified  up 
to  the  Supreme  Court  of  the  tlnited  States  and  shall  be  considered  therein,  and  if 
upon  consideration  thereof,  two  thirds  of  all  the  members  of  the  Supreme  Court 
shall  not  affirm  such  judgment,  the  same  shall  be  declared  and  held  reversed." 
This  new  modification  was  defeated  by  a  vote  of  twenty-five  to  one  hundred  and 
twenty-four. 

'  Independent,  Jan.  23, 1808 ;  Harper* $  WeeJdy,  Feb.  1, 1868 ;  IndianapclU  Journal^ 
Jan.  25,  1808;  WaMnnUm  Weekly  Chronide,  Jan.  25, 1808. 


190  THE  SUPREME  COURT 

decision  from  the  Supreme  Court.  Let  the  bill  pass 
prohibiting  a  bare  majority  from  declaring  any  Con- 
gressional Act  void/'  said  the  Independent.  "It  is 
needed  now,  never  more  than  at  this  moment;  and 
the  fact  that  it  is  needed  is  no  argument  against  the 
propriety  of  passing  the  bill,  as  some  timid  people  con- 
tend ;  "  and  it  even  charged  that :  "The  Supreme  Court 
is  at  this  hour  the  guilty  confederate  of  Andrew  John- 
son. The  country  will  rejoice  to  see  it  checkmated.*' 
Harper^s  Weekly  argued,  in  support  of  the  measure, 
that :  "If  the  Court  shall  decide  against  the  validity  of 
the  Legal  Tender  Act,  that  the  War  was  fought  on  an 
unconstitutional  basis,  and  that  the  Southern  States 
are  still  in  the  Union  .  .  .  results  that  cannot  be  con- 
templated without  extreme  solicitude  would  follow,  and 
it  is  wholly  unsafe  to  leave  these  questions  to  the  de- 
cision of  a  bare  majority  of  the  Judges.  .  .  .  The 
regulation  in  question  in  no  manner  interferes  with  the 
stability  of  the  Court,  except  to  promote  it.  It  leaves 
the  whole  judicial  power  in  the  tribunal,  and  only  regu- 
lates it  so  as  to  prevent  a  capricious  judgment.  The  in- 
dependence of  the  Judge  is  not  interfered  with."  The 
Indianapolis  Journal  regretted  that  the  bill  had  not 
been  introduced  at  an  earlier  date,  when  it  woidd  not 
provoke  such  partisan  feeling ;  but  it  said  that  it  was 
never  of  so  great  importance  as  now.  "The  Recon- 
struction Acts  are  full  of  the  rights  and  liberties  of 
millions  of  men ;  and  to  have  these  stricken  down,  by 
the  decision  of  some  old  fossil  on  the  Supreme  Bench 
whose  political  opinion  belongs  to  a  past  era,  would 
be  an  outrage  on  humanity.'*  It  urged  that  a  two- 
thirds  requirement  would  lift  judicial  decisions  into 
universal  respect,  while  the  present  close  divisions  ex- 
posed the  Court  to  imputations  of  partisanship.  The 
Washington  Chronicle^  urging  the  passage  of  the  bill, 


RECONSTRUCTION  191 

said  that  owing  to  the  Court's  action  in  the  McCardle 
CasCy  which  had  created  "a  feeling  of  just  and  general 
resentment  .  .  .  the  new  peril  of  the  Republic  is  grave ; 
but  the  remedy  is  sure  and  drastic,  and  it  ought  to 
be  applied  without  waiting  or  shrinking," 

These  views,  however,  were  not  shared  by  the  coun- 
try at  large;  and  the  general  public  was  opposed  to 
so  revolutionary  an  attempt  to  interfere  with  the 
Judiciary,^  A  leading  paper  in  the  West,  the  Chicago 
Republican^  said  that  Congress  was  attempting  to 
override  the  Supreme  Court,  the  'National  Executive 
and  every  judicial  tribunal  in  the  country ;  that  Con- 
gress should  "'check  injustice  and  oppression  on  its 
own  part."  And  it  further  stated  that  it  could  never 
"sit  by  quietly  and  see  a  hand  lifted  against  the  Court 
or  the  Constitution,  whether  by  our  National  Congress 
or  by  Southern  traitors",  and  that  such  were  the  views 
of  nine  tenths  of  the  Republicans  in  the  Northwest. 
"The  people  are  not  in  favor  of  this  Supreme  Court 
bill.  Let  Congress  avoid  all  doubtful  or  violent  meas- 
ures of  legislation.  ...  It  must  not  meddle  with  the 
constitutional  rights  and  privileges  of  the  people,  nor 
of  their  Executive  or  Supreme  Judiciary.  .  .  .  Re- 
garding, as  they  do,  the  Supreme  Court  as  the  judi- 
cial bulwark  against  tyranny  and  injustice  on  the  part 
of  either  President  or  Congress,  they  will  never  permit 
this  safeguard  against  oppression  to  be  swept  away. 
The  people  will  be  found  as  prompt  to  resent  usurpa- 
tion on  the  part  of  Congress  as  of  Johnson."  Other 
papers  asked  if  the  Republican  leaders  in  Congress 
wished  to  justify  the  charge  of  the  Democracy  that 
they  are  bound  upon  usurpation  and  revolution.    The 

^  Chicago  RepMicarit  Jan.  15,  24,  25,  27,  31 ;  in  the  latter  issue  it  stated  that  the 
Cineinnati  OauUe,  Detmii  Tribune,  Cleveland  Herald,  Albany  Evening  Journal,  and 
fifty  other  Republican  papers  were  opfKMed  to  the  bill.  See  also  Nation,  Jan.  16, 
80,  Feb.  20,  1868;  Spnngfidd  Republican,  Jan.  IS,  18,  25,  Feb.  1,  1868. 


192  THE  SUPREME  COURT 

Springfield  Republican  remarked  sarcastically,  but  per- 
tinently: "If  the  Supreme  Court  should  decide  the 
two-thirds  law  to  be  unconstitutional,  and  by  a  two- 
thirds  vote,  what  is  to  be  done  next  ?  This  is  a  poser. 
There  seems  to  be  nothing  for  it  but  to  suspend  the  ac- 
tion of  the  Court  on  constitutional  questions,  during 
the  existence  of  the  present  Congress/*  The  Nation 
opposed  the  bill  as  an  attempt  by  Congress  to  manipu- 
late the  Court  to  suit  a  particular  exigency,  the  only 
effect  of  which  would  be  to  weaken  the  Court's  influence. 
Pointing  out  that,  hitherto,  the  opponents  of  the  Court 
had  been  found  among  the  partisans  of  State-Rights, 
it  said  that:  ""It  is  more  than  strange,  it  is  pitiable, 
to  find  the  National  men  of  the  present  day  repeat- 
ing the  State  arguments  so  often  used  by  their  adver- 
saries. To  remove  the  legislation  of  Congress  from  the 
reach  of  all  jurisdiction  is  simply  impossible.  ...  If 
the  Judges  of  the  Nation  are  silenced,  those  of  the 
States  will  be  left  entirely  uncontrolled.  .  .  .  Remove 
the  supervisory  function  of  the  National  Judiciary  and 
these  laws  will  become  the  sport  of  local  partisanship ; 
upheld  in  one  commonwealth,  they  will  be  overthrown 
in  another,  and  all  compulsive  character  will  be  lost. 
...  To  restrict  their  jurisdiction  and  weaken  their 
moral  power  is,  therefore,  to  sacrifice  in  a  most  un- 
necessary manner  that  department  of  the  Government 
which,  more  than  any  other,  will  make  National  ideas 
triumphant,  not  only  in  the  legislation  of  today  but  in 
the  permanent  convictions  of  the  people.'' 

Gideon  Welles  displayed  his  apprehensions  as  a  con- 
servative Republican  over  this  attitude  of  the  Radi- 
cals as  follows: 

Jan.  IS,  1868:  In  the  House,  under  the  discipline  and 
stimulation  of  the  Radical  leaders,  there  is  manifested  a 
revolutionary  and  violent  spirit.    Part  of  the  conspiracy 


RECONSTRUCTION  19S 

is  a  scheme  to  change  the  character  of  the  Supreme  Court, 
which  Stevens  and  his  fellows  find  is  against  them. 

Feb.  18,  1868:  In  their  war  upon  the  Court,  the  Radicals 
under  the  lead  of  Trumbull,  have  under  consideration  an  act 
prohibiting  the  Court  from  passing  judgment  on  political 
questions,  and  they  have  now  a  bill  declaring  what  are 
political  questions.  These  usurpations  and  intrigues  strain 
our  government. 

In  the  Senate,  there  now  appeared  some  hesitation 
on  the  part  of  the  Republican  leaders  to  enact  the  House 
bill  for  the  requirement  of  a  concurrence  of  two  thirds 
of  the  Judges;  and  Democratic  Senators  made  the 
charge  (with  considerable  reason)  that  the  Republicans 
suspected  that,  even  with  such  a  requirement,  the  Re- 
construction Laws  would  be  held  unconstitutional. 
After  several  postponements,  the  bill  was  finally 
dropped.  Later,  another  more  extreme  measure,  orig- 
inating with  Thaddeus  Stevens  in  the  House  and  ex- 
pressly forbidding  the  Supreme  Court  to  take  juris- 
diction in  any  case  in  law  or  equity  arising  out  of  the 
Reconstruction  Acts,  was  introduced  by  Lyman  Trum- 
bull in  the  Senate ;  but  that  body,  doubting  the  politi- 
cal expediency  of  creating  such  a  precedent,  finally 
took  no  action.^  The  wisdom  of  this  course  was  well 
pointed  out  by  the  Nation:  "If  this  game  of  *  excep- 
tions', as  an  instrument  of  party  warfare,  be  once 
fairly  entered  on,  we  venture  to  say  that,  in  the  course 
of  the  next  twenty  years,  the  constitutionality  of  half 
the  statutes  at  large  would  be  withdrawn  from  the 
cognizance  of  the  Supreme  Court.  It  is,  luckily,  three 
years  before  the  Democrats  can  get  the  upper  hand  in 

1  ^Oth  Cong.,  ed  Sess.,  2137,  March  26,  1868.  It  is  to  be  noted  that  are  solution 
was  introduced  into  the  House  to  investigate  a  statement  appearing  in  the  Wash- 
ingUm  Evening  Express  of  Jan.  £9,  1868,  to  the  effect  that  Judge  Field  had  openly 
declared  the  Reconstruction  law  to  be  invalid.  Chicago  Republican,  Feb.  6,  7, 
1808.    These  statements  were  later  proved  false. 

VOL.  in — 7 


194  THE  SUPREME  COURT 

Congress ;  but  when  they  do,  there  will  be  some  wonder- 
working legislation/* 

On  February  10, 1868,  the  Court  made  public  for  the 
first  time  its  full  opinion  (delivered  by  Judge  Nelson) 
in  the  cases  brought  by  the  States  of  Georgia  and  Mis- 
sissippi against  Secretary  Stanton  and  General  Grant, 
which  it  had  dismissed  in  the  preceding  May.  The 
first  sentiment  of  the  Republicans  as  to  this  opinion 
was  that  it  would  dispose  of  the  McCardle  Case^^  which 
they  assumed  would  also  be  regarded  by  the  Court  as 
involving  a  mere  political  question.  "Not  only  is  the 
supremacy  of  the  Court  declared  to  be  judicial  suprem- 
acy, but  the  issues  arising  out  of  the  Reconstruction 
legislation  of  Congress  are  pronounced  to  fall  within 
the  political  domain,  upon  which  the  tribunal  has  no 
right  to  enter.  In  vain  will  ex-rebels  look  to  the  judi- 
cial department  of  the  United  States  to  aid  them  in 
their  wicked  scheme  of  insubordination  and  resistance,'* 
was  the  exultant  conmient  of  the  Chicago  Tribune;  and 
the  Chicago  Republican^  remarking  the  unanimity  of  the 
Judges,  said  that:  "It  must  exert  a  powerful  influence 
in  repressing  the  stubbornness  and  confidence  of  the 
ex-rebels  in  their  reactionary  schemes.  They  must 
now  feel  that  Congress  is  sole  master  of  the  political 
situation.  .  .  .  Disregard  of  the  distinctions  between 
political  and  judicial  powers  would  convert  the  Supreme 
Court  into  a  political  council  and  board  of  control. 
...  It  would  confer  on  the  Supreme  Court,  powers 
too  gigantic  and  terrific,  too  dangerous  to  the  peace 
of  the  United  States."  On  the  other  hand,  the  Nation 
correctly  pointed  out  that:  "The  judgment  is  mainly 
important,  as  showing  the  reluctance  of  the  whole 
Court  to  meddle  in  Reconstruction,  or  in  any  way 

1  Chicago  Tribune,  Feb.  12, 1868;  Chieago  Republican,  Feb.  11, 12, 1868;  Nation, 
Feb.  18, 1868;  Spnngfieid  Republican,  Feb.  12.  22,  1868. 


RECONSTRUCTION  195 

throw  itself  across  the  track  of  Congress  or  of  the  Ex- 
ecutive, and  ought  to  make  some  of  the  ^sons  of 
thunder'  who  have  been  abusing  it  for  the  last  month 
a  little  ashamed  of  their  work.  But  it  does  not,  it 
seems  to  us,  remove  all  grounds  for  anxiety  as  to  the 
McCardle  Case;  for  Judge  Nelson  in  several  places 
suggests  the  inference  that  a  bill  showing  that  the 
Act  of  Congress  in  some  way  infringed  on  rights  of 
persons  or  property  might  be  differently  treated." 
On  February  3,  1868,  one  week  after  the  publication 
of  its  opinion  in  the  Georgia  and  Mississippi  cases, 
and  only  one  week  after  the  argument  of  Ex  "parte  Mc- 
Cardie,  6  Wall.  318,  the  Court,  contrary  to  general 
public  expectation,  rendered  its  decision  upholding  its 
jurisdiction  of  the  latter  case,  and  on  March  2,  argu- 
ments were  begun  before  it.  "I  spoke  two  and  a  half 
hours  today,  and  as  well  as  I  expected  or  hoped  to  do,** 
wrote  Senator  Mathew  Hale  Carpenter  (one  of  the  Gov- 
ernment counsel)  to  his  wife.  ''I  am  praised  nearly 
to  death.  I  had  half  of  the  Senate  for  an  au- 
dience. Miller's  face  was  as  the  face  of  an  angel,  radi- 
ant with  light  and  joy.  Davis  and  Field  looked 
troubled.  Nelson,  Clifford  and  Grier,  dead  against 
me.  But  I  shook  them  up  and  rattled  their  dry 
bones."  ^  Meanwhile,  the  Impeachment  Trial  of  Presi- 
dent Johnson  had  been  initiated  and  on  March  5,  in 
the  midst  of  the  McCardle  argument.  Chief  Justice 
Chase  was  withdrawn  from  the  Bench  in  order  to  pre- 
side over  the  Senate.^  On  March  9,  the  Court  took 
the  case  under  advisement.'    Three  days  later,  Con- 

^  Maihew  Hole  Carpenter  as  a  Latoper,  by  Henry  D.  Ashley,  Green  Bag  (1894), 
VI :  "When  Carpenter  finiahed.  Secretary  of  War  Stanton,  with  tears  in  his  eyes, 
exclaimed  fervently :  'Carpenter,  you  have  saved  us.* *' 

'  The  House  had  voted  for  impeachment,  Feb.  24,  1868 ;  the  first  proceedings 
in  the  Senate  took  place  on  March  6 ;  the  trial  began  March  13,  and  the  first  vote 
was  taken  May  16. 

*  As  to  this  caae»  see  especially  New  York  Herald^  March  4, 14,  1868^  publishing 


196  THE  SUPREME  COURT 

gress  finally  decided  to  intervene  and  to  render  any 
decision  of  the  case  impossible.  In  spite  of  the  fact 
that,  owing  to  Chase's  absence,  the  Court  might  be 
desirous  of  postponing  a  decision  until  the  next 
Term,  the  Radicals  in  Congress  were  fearful  and  re- 
solved to  take  no  chances.  On  March  12,  1868,  there 
was  pending  in  the  House  a  harmless  and  unimportant 
Senate  bill  to  extend  to  the  Court's  appellate  juris- 
diction in  cases  involving  customs  and  revenue  officers. 
Unanimous  consent  had  been  obtained  by  Robert 
C.  Schenck  of  Ohio  for  its  consideration,  on  the  state- 
ment that  it  was  a  mere  routine  matter ;  and  while 
the  Democrats  were  thus  thrown  off  their  guard  by  this 
assertion,  James  F.  Wilson  of  Iowa,  without  any  ex- 
planation or  debate,  introduced  an  amendment  entirely 
repeaUng  the  appellate  jurisdiction  of  the  Court  under 
the  Habeas  Corpus  Act  of  1867,  and  further  prohibit- 
ing the  exercise  of  any  jurisdiction  by  the  Court  on 
appeals  which  had  been  or  might  be  taken. ^  The 
amendment  was  agreed  to  without  comment  or  objec- 
tion, and  the  bill  as  thus  amended  by  the  House  went 
back  to  the  Senate.  Then,  for  the  first  time,  the  moder- 
ate Republicans  and  the  Democrats  awoke  to  the  fact 
that  they  had  been  deceived.  Benjamin  M.  Boyer 
of  Pennsylvania  charged  that  the  House  had  been  dis- 
armed by  Schenck's  remarks  and  induced  to  accept  an 
amendment  not  genuine.     He   charged   that   it   had 

David  Dudley  Field's  argument  in  full;  Chicago  RepubUean,  March  5,  6,  7,  10, 
1868;  IndianajKdis  Journal,  March  6,  10,  1868.  The  Springfield  Republican* 9 
Washington  correspondent  wrote,  March  5,  that  it  was  considered  certain  that  the 
case  would  not  be  decided  until  the  next  Term. 

^  In  Social  Foreee  in  American  History  (1911),  by  A.  M.  Simons,  800-301,  it  is 
stated :  "On  the  27th  of  March,  1868,  Congress  passed  a  law  threatening  the  mem- 
bers of  the  Supreme  Court  with  fines  and  imprisonment,  if  they  interfered  with  the 
carrying  out  of  such  legislation,  and  notifying  that  body  that  this  legislation  was 
not  subject  to  review  as  to  its  constitutionality.  The  Court  and  Congress  com- 
pletely punctured  the  bubble  upon  which  the  autocratic  power  of  the  Court  rests." 
Such  a  statement  as  to  the  character  of  the  statute  enacted  is  incorrect,  for  it  made 
no  provision  for  fines  and  imprisonment. 


RECONSTRUCTION  197 

been  smuggled  through,  to  prevent  a  test  of  the  con- 
stitutionality of  the  Reconstruction  Acts;  and  while 
admitting  that  the  minority  had  not  been  wide  enough 
awake,  and  had  been  caught  napping,  he  thought  that 
it  would  have  been  more  manly  to  have  introduced 
such  a  measure  for  free  discussion.^  Schenck,  in  reply, 
boldly  and  frankly  avowed  that  his  purpose  had  been 
to  deprive  the  Court  of  its  power  and  jurisdiction, 
saying  that  he  had  lost  confidence  in  the  majority  of 
that  tribunal,  and  that :  "  They  usurp  power,  whenever 
they  dare  to  undertake  to  settle  questions,  purely  po- 
litical, in  regard  to  the  status  of  the  States  and  the  man- 
ner in  which  those  States  are  to  be  held  subject  to  the 
law-making  power.  And  if  I  find  them  abusing  that 
power,  by  attempting  to  arrogate  to  themselves  juris- 
diction under  any  statute  that  happens  to  be  upon 
the  record  from  which  they  claim  to  derive  that  juris- 
diction, and  I  can  take  it  away  from  them  by  a  repeal 
of  that  statute,  I  will  do  it.  .  .  .  Now  I  hold  that  the 
Supreme  Court,  arrogating  to  themselves  the  preten- 
sion to  settle  not  merely  judicial  but  political  ques- 
tions, and  trampling  upon  the  principle  of  the  decision 
made  in  the  case  of  the  Dorr  Rebellion  and  upon  every 
other  decision  of  that  kind,  are,  the  majority  of  them, 
proceeding  step  by  step  to  the  usurpation  of  jurisdic- 
tion which  does  not  belong  to  them.  And  I  hold  it  to 
be  not  only  my  right,  but  my  duty  as  a  Representative 
of  the  people,  to  clip  the  wings  of  that  Court." 

In  the  Senate,  the  amendment  to  its  bill  was  con- 
curred in,  with  no  explanation  or  debate,  on  March  12, 
1868,  by  a  vote  of  thirty-two  to  six,  with  sixteen  Sena- 
tors absent.  A  request  by  Charles  R.  Buckalew  of 
Pennsylvania  for  information  as  to  the  purpose  of  the 
amendment  received  only  a  very  brief  reply  by  George 

^  MHh  Cong.,  2d  8$S8„  1859, 1881  et  «eg.»  March  12»  14,  1868. 


198  THE  SUPREME   COURT 

H.  Williams  of  Oregon,  which  did  not  in  any  way  ex- 
plain its  real  purpose ;  and  a  request  by  Buckalew  for 
postponement  of  action  was  refused.*  Within  a  very 
few  days,  however,  after  the  passage  of  the  bill  through 
both  Houses,  the  fact  that  Congress  had  been  practi- 
cally tricked  into  passing,  without  debate,  a  measure 
of  the  utmost  importance  burst  with  a  shock  upon  the 
country.     Welles  wrote  in  his  diary : 

March  i^,  1868.  It  is  evident  that  the  Radicals  in  Con- 
gress are  in  a  conspiracy  to  overthrow  not  only  the  President 
but  the  Government.  The  impeachment  is  but  a  single  act 
in  the  drama.  .  .  .  By  trick,  imposition  and  breach  of 
courtesy,  an  Act  was  slipped  through  both  houses,  repealing 
the  laws  of  1867  and  1789,  the  effect  of  which  is  to  take 
from  the  Supreme  Court  certain  powers  and  which  is  designed 
to  prevent  a  decision  in  the  McCardle  Case.  Should  the 
Court  in  that  case,  as  it  is  supposed  they  will,  pronounce  the 
Reconstruction  Laws  unconstitutional,  the  military  govern- 
ments will  fall  and  the  whole  Radical  fabric  will  tumble 
with  it.  Only  one  course  can  prolong  the  miserable  contriv- 
ance, and  that  is  a  President  like  Wade,  who  will  maintain 
the  miUtary  governments  regardless  of  Courts,  of  law,  or 
right.  Hence,  I  have  very  little  expectation  that  the  Presi- 
dent will  escape  conviction.  His  deposition  is  a  party 
necessity,  and  the  Senators  have  not  individually  the 
strength,  ability,  nor  honesty,  to  resist  the  Radical  caucus 
decision,  which  Stevens,  Ben  Butler,  and  other  chief  con- 
spirators sent  out. 

"The  country  is  in  the  hands  of  Congress.  That 
Congress  is  the  Radical  majority,  and  that  Radical 
majority  is  old  Thad  Stevens.  Government  by  the 
people  has  its  glories ! "  said  the  New  York  Herald,  with 
sarcasm,  but  with  truth.*  But  the  Radical  Republi- 
can press  was  exultant.     "The  passage  of  that  little 

1  ^Oth  Cong.,  2d  Sess,,  2095,  March  25,  1868;  see  speech  of  Senator  Thomas  A. 
Hendricks  explaining  the  method  by  which  the  bill  passed  the  Senate. 

*New  York  Herald,  March  14,  1868;  Independmit,  March  19,  April  21,  1868; 
Springfidd  Republican,  March  27, 1868. 


RECONSTRUCTION  199 

bill  which  put  a  knife  to  the  throat  of  the  McCardle 
Case  was  a  splendid  performance.  .  .  •  Congress  will 
not  abandon  its  Reconstruction  policy  to  please  any 
Court,  because  it  sincerely  believes  that  the  welfare 
of  the  Nation  depends  upon  the  success  of  that  policy/' 
said  the  Independent.  "This  Congress  will  not  brook 
opposition  from  the  Court  in  political  matters.  The 
safety  of  the  Nation  demands  that  Congressional  Re- 
construction shall  be  successful ;  and  if  the  Court  inter- 
feres, the  Court  will  go  to  the  wall.  This  language 
sounds  harsh  and  indecorous  to  fossil  ears,  no  doubt." 
And  the  Springfield  Republican  said:  "Congress  does 
not  intend  to  permit  the  Supreme  Court  to  overthrow 
it  or  revive  rebellion,  if  it  can  help  it." 

Although  his  impeachment  trial  had  already  be- 
gun, the  President  did  not  hesitate,  even  at  this 
desperate  moment  in  his  career,  to  meet  the  Congres- 
sional attack  upon  the  Court  with  a  vigorous  deter- 
mination to  uphold  the  honorable  status  of  that  tri- 
bunal; and  on  March  25,  he  sent  to  Congress  a 
powerfully  worded  veto  of  the  bill,  in  which  he  stated : 

Thus  far  during  the  existence  of  the  Government,  the  Su- 
preme Court  of  the  United  States  has  been  viewed  by  the 
people  as  the  true  expounder  of  their  Constitution,  and  in 
the  most  violent  party  conflicts,  its  judgments  and  decrees 
have  always  been  sought  and  deferred  to  with  confi- 
dence and  respect.  In  public  estimation,  it  combines  ju- 
dicial wisdom  and  impartiality  in  a  greater  degree  than  any 
other  authority  known  to  the  Constitution;  and  any  act 
which  may  be  construed  into,  or  mistaken  for,  an  attempt 
to  prevent  or  evade  its  decisions  on  a  question  which  affects 
the  liberty  of  the  citizens  and  agitates  the  country  cannot 
fail  to  be  attended  with  unpropitious  consequences.  It 
will  be  justly  held  by  a  large  portion  of  the  people  as  an  ad- 
mission of  the  unconstitutionality  of  the  act  on  which  its 
judgment  may  be  forbidden  or  forestalled,  and  may  inter- 
fere with  that  willing  acquiescence  in  its  provisions  which 


«00  THE  SUPREME  COURT 

is  necessary  for  the  harmonious  and  efficient  execution  of 
any  law. 

When  the  question  of  passing  the  bill  over  the  veto 
arose  in  the  Senate,  opportunity  was  at  last  given  for  a 
thorough  debate  as  to  its  purpose,  and  its  supporters 
were  worsted  on  the  argument.^  Lyman  Trumbull, 
who  was  largely  responsible  for  its  enactment,  at- 
tempted to  argue  that  there  was  no  case  pending  be- 
fore the  Supreme  Court  under  the  Habeas  Corpus  Act 
of  February  6,  1867.  This  bill,  he  said,  was  not  a  very 
important  measure;  and  at  all  events  the  "liberties 
of  the  people  had  been  pretty  well  preserved  for  three 
quarters  of  a  century,  without  the  Act  of  1867  in  any 
of  its  provisions ;  and  all  the  securities  that  were  ever 
afforded  until  within  the  last  year  are  left  just  as  they 
always  have  been,"  ^  To  this  rather  disingenuous  ar- 
gument, James  R.  Doolittle  of  Wisconsin  replied  very 
forcibly  that,  if  there  was  no  case  pending  before  the 
Supreme  Court  which  would  be  affected  by  the  bill,  why 
did  the  bill  make  specific  provisions  for  repeal  of  jurisdic- 
tion in  all  pending  cases  ?  *  *  Why  undertake  to  take  away 
the  jurisdiction  of  the  Court?  The  truth  is,  and  we  may 
as  well  look  it  square  in  the  face,  it  is  because  men  know 
that  these  acts  will  be  decided  to  be  unconstitutional. 
.  .  .  I  say  it  is  because  they  fear  it;  because  they 
know  that  the  constitutionality  of  the  measures  is  in- 

^  Wth  Cong.,  id  8$»s„  2095,  2115,  2127,  2105,  March  25,  26, 1868. 

*  The  Chicago  RepMioan,  March  27, 1868,  attempted  a  similar  and  false-hearted 
defense  of  the  bill,  saying  that  the  Habeas  Corpus  Act  of  1867  was  only  intended 
**  to  counteract  the  spirit  of  rebel  persecution  that  sought  to  inflict  vengeance  upon 
Union  whites  and  blacks  under  the  forms  of  law"  and  that  "probably,  through  the 
expensiveness  of  its  processes,  it  had  been  little  resorted  to.  Indeed  the  ingenuity 
of  disloyal  men  threatens  to  make  it  an  instrument  for  promoting  thdr  nefarious 
ends.  Congress  has,  therefore,  decided  to  remove  from  them  this  source  of  embroil- 
ment. Another  reason  justifying  its  repeal  is  that  the  whole  time  of  the  Supreme 
Court  is  already  occupied  in  its  consideration  of  cases  naturally  and  properly 
arising,  and  that  it  would  be  impolitic  to  encumber  the  docket  with  unnecessary 


causes." 


RECONSTRUCTION  201 

volved,  and  they  fear  that  the  decision  will  be  against 
their  constitutionality."  Trumbuirs  position  in  re- 
gard to  this  bill  was  a  delicate  one,  for  he  was  counsel 
for  the  Government  in  the  McCardle  Case  and  had  full 
knowledge  of  the  issues  involved.  William  M.  Stewart 
of  Nevada,  therefore,  came  to  his  aid  with  a  vicious 
attack  upon  the  Court  and  its  motives.  Stewart  was 
no  more  fortunate,  however,  in  the  explanation  which 
he  proffered  as  to  the  necessity  for  this  bill ;  since,  after 
stating  that  it  was  required  because  of  the  crowd  of 
cases  arising  under  the  Act  of  1867„  he  was  obliged  to 
admit,  on  being  pressed  for  details,  that  he  knew  of 
only  one  pending  case  —  McCardle's.  In  a  masterly 
speech  on  the  whole  subject  of  habeas  corpus.  Senator 
Thomas  A.  Hendricks  of  Indiana  taunted  the  "brave 
Senators'*  who  were  "afraid  of  the  decision  of  the 
Court.  .  .  .  You  did  claim  to  the  country  that  the 
Administration  of  Mr.  Lincoln  was  entitled  to  its  con- 
fidence; and  are  there  not  five  Judges  out  of  eight 
whom  Mr.  Lincoln  appointed  and  whom  you  confirmed ; 
and  at  the  head  is  there  not  Chief  Justice  Chase,  dis- 
tinguished as  a  party  leader?  Then,  with  a  Supreme 
Court,  five  out  of  eight  appointed  by  Mr.  Lincoln  and 
confirmed  by  these  honorable  Senators  that  I  am 
addressing,  and  only  three  of  the  Old  Court  left,  you 
say  you  cannot  afford  to  risk  this  question  before 
that  Court.  Why  ?  Let  that  question  be  answered/' 
Senator  Reverdy  Johnson  also  replied  with  force  to 
Stewart's  attacks  on  the  Court,  and  said  that  it  was 
"dangerous  to  inculcate  the  belief  that  Courts  can  be 
governed  by  political  and  party  motives."  Senator 
Willard  Saulsbury  of  Delaware  charged  that  the 
passage  of  the  bill  was  an  act  of  "despotism'*;  Sen- 
ator Thomas  F.  Bayard  of  Delaware  termed  it  a"  con- 
fession of  fear" ;  and  S^ator  Charles  R.  Buckalew  of 


202  THE  SUPREME  COURT 

Pennsylvania  spoke  of  Trumbuirs  "feeble  and  fruit- 
less denial "  of  the  real  purpose  of  the  Act.  But  though 
the  merits  of  the  debate  were  wholly  with  the  defenders 
of  the  Court,  the  bill  passed  the  Senate  on  March  26, 
1868,  over  the  President's  veto,  by  a  vote  of  thirty-three 
to  nine  (with  twelve  Senators  absent) ;  it  passed  the 
House  on  March  27,  by  a  vote  of  one  hundred  and 
fifteen  to  fifty-seven,  and  became  the  Act  of  March  27, 
1868.  Thus  was  consummated  an  action  which  has 
been,  with  justice,  characterized  as  '^an  abominable 
subterfuge  on  the  part  of  Congress  and  a  shameful 
abuse  of  its  powers.'*  ^ 

Meanwhile,  during  the  eighteen  days  between  the 
close  of  the  argument  in  the  McCardle  Case  and  the 
final  passage  of  this  bill,  there  was  much  excitement 
over  the  question  whether  the  Court  would  proceed 
to  render  its  decision,  regardless  of  the  pendency  of 
the  bill  taking  away  its  jurisdiction.*  Gradually,  it 
became  apparent  that  the  Court  intended  to  await 
the  final  outcome  of  the  bill,  and,  as  the  Republican 
papers  stated,  that  it  did  not  choose  "to  run  a  race 
with  Congress",  since  "it  would  hardly  have  been 
consistent  with  the  dignity  of  the  country  and  the  re- 
spect due  to  the  other  branches  of  the  Government  to 
proceed  with  the  matter  until  the  President  had  either 
approved  or  vetoed  the  bill,  and  the  Congress  had  acted 
on  the  veto."  •    "The  Supreme  Court,  acting  with 

1  ReeonHnuHon  and  ike  ConHUtOUm  (1902),  by  John  W.  Burgess,  19(^-197. 

*  The  Boston  PosCt  Washington  correspondent  wrote  that  it  was  believed  that 
the  Court  would  decide  the  case,  "  in  defense  of  its  own  dignity,  and  to  show  that 
the  Court  cannot  be  trifled  with  by  reckless  partisans  who  flippantly  speak  of 
'  clipping  the  wings  of  the  Court.'  It  is  well  ascertained  that  Justices  Chase, 
Nelson,  Grier,  Clifford,  Davis  and  Field  believe  the  Reconstruction  Acts  to  be  un- 
constitutional. .  .  .  The  decision  is  made  up,  and  they  have  the  power  and  the 
right  to  deliver  it.  Whether  they  have  the  nerve  to  be  an  independent  Judiciary 
remains  to  be  seen.*'     See  New  York  Tribune^  March  19,  1868. 

' The  IndianapoUs  Journal,  March  18,  1868,  said:  "The  Copperheads  contend 
that  so  far  as  the  McCardls  Case  is  concerned,  having  abeady  been  argued  before 


RECONSTRUCTION  «0» 

more  discretion  and  better  taste  than  the  President," 
said  the  Springfield  Republican^  **bows  down  to  the  will 
of  Congress,  and  has  postponed  the  McCardle  Case  till 
Congress  has  more  definitely  settled  the  Reconstruc- 
tion question.  No  announcement  to  this  effect  has 
been  publicly  made,  but  it  is  known  that  the  Court 
has  made  the  decision,  only  Justices  Field  and  Grier 
voting  for  an  immediate  decision,"  This  delay  by  the 
Court  was  the  subject  of  much  criticism  by  the  Demo- 
crats, who  asserted  that  it  was  seeking  to  evade  its 
responsibilities.  When  the  bill  was  finally  passed  over 
the  President's  veto,  the  Court  was  immediately  con- 
fronted with  the  necessity  of  deciding  whether  Con- 
gress had  the  power  to  abolish  its  right  to  adjudicate 
pending  cases.  On  Monday,  March  30,  Jeremiah  S. 
Black  moved  that  the  case  be  set  down  for  argument 
on  this  important  question,  and  the  Court  after  some 
hesitation  agreed  to  hear  it  on  April  2.  Counsel,  how- 
ever, not  being  prepared  to  proceed  on  so  short  a  notice, 
a  majority  of  the  Judges  (Grier  and  Field  dissenting) 
decided  that  no  further  date  would  be  fixed  and  that 
the  whole  matter  must  be  postponed  until  the  next 
Term,  and  it  was  so  ordered.  At  the  same  time,  the 
Court  refused  to  take  up  the  pending  case  of  Georgia 
V.  Grant,  a  new  bill  in  equity  filed  by  the  State  to  en- 
join the  enforcement  of  military  action.^ 

the  Court,  the  bill  is  ex  poH  fado  and  cannot  apply.**  The  Chicago  RepMiean, 
April  7,  1868,  said  that  the  case  was  not  considered  at  the  first  consultation  day, 
Saturday,  March  18,  and  that  before  the  next  one,  the  Court  had  learned  of  the 
passage  of  the  bill  on  March  12;  see  also  Indianapolis  Journal^  April  7, 1868 ;  New 
York  Herald,  March  20,  1868 ;  Springfield  Republican,  March  28,  1868 ;  speech 
of  Reverdy  Johnson,  40th  Cong.,  2d  Sees,,  2095.  The  Chicago  RepMiean,  March 
24,  1868,  said :  "The  Democrats  are  abusing  the  Supreme  Court  soundly  for  not 
rendering  decision,  since  the  announcement  is  made,  on  authority  of  the  Court, 
that  a  decision  will  not  be  made  for  some  time." 

^  Indianapolis  Journal,  Maich  28, 1868.  In  this  case,  on  Feb.  8,  1868,  David  D. 
Field  moved  for  leave  to  file  a  new  bill  in  equity ;  leave  was  granted  March  16 ;  see 
also  New  York  Tribune,  March  21,  28,  1868. 


204  THE  SUPREME  COURT 

The  Reconstruction  cases  were  thus  disposed  of,  for 
another  year.  But  the  revolutionary  methods  which 
had  been  employed  by  Congress  in  accomplishing  its 
purpose  and  the  evident  reluctance  of  the  Court  to 
face  the  issue  dismayed  and  disheartened  the  conser- 
vative portion  of  the  community.  So  strongly  did 
Judge  Grier  feel  over  the  postponement  of  the  Mc- 
Cardie  Case  that,  on  conclusion  of  Black's  argument 
on  March  30,  he  filed  in  writing  the .  following  stout 
protest :  ^ 

This  case  was  fully  argued  in  the  beginning  of  this  month. 
It  is  a  ease  which  involves  the  liberty  and  rights,  not  only  of 
the  appellant,  but  of  millions  of  our  fellow  citizens.  The 
coimtry  and  the  parties  had  a  right  to  expect  that  it  would 
receive  the  immediate  and  solemn  attention  of  the  Court. 
By  the  postponement  of  this  case,  we  shall  subject  ourselves, 
whether  justly  or  unjustly,  to  the  imputation  that  we  have 
evaded  the  performance  of  a  duty  imposed  on  us  by  the 
Constitution,  and  waited  for  Legislative  interposition  to 
supersede  our  action,  and  relieve  us  from  responsibility. 
I  am  not  willing  to  be  a  partaker  of  the  eulogy  or  oppro- 
brium that  may  follow.    I  can  only  say, 

Pvdet  hoc  opprobrium  nobis 
Et  poiuisse  did  et  rum  potuisse  repeUi. 

or,  literally  translated,  I  am  ashamed  that  such  opprobrium 
should  be  cast  upon  the  Court,  and  that  it  cannot  be  refuted. 

This  action  by  Grier  was  made  the  subject  of  con- 
siderable comment,  and  extreme  Republican  papers 
termed  it  "an  unseemly  exhibition  ...  a  breach  of 
judicial  decorum,  for  which  there  is  no  excuse  unless 
it  was  caused  by  aberration  of  mind  or  dotage,  .  .  . 
an  extra-judicial  opinion  of  an  extraordinary  character 
tantamount  to  accusing  his  Associates  on  the  Bench 

^  Indianapolis  Journal,  April  2,  $,  1868;  Chicago  Republican^  April  8,  1868; 
National  Inielligencer,  March  31,  April  6,  1868.  Grier*s  ttatement  ib  reported  in 
slightly  differing  phraaeobgy  in  the  Tarioiu  papers. 


RECONSTRUCTION  805 

of  malversation  in  office."  There  was,  nevertheless,  a 
very  general  feeling  throughout  the  country  that  the 
Court  had  evaded  an  issue.  "It  must  be  confessed,'' 
said  the  Springfield  Republican,  "that  the  course  of 
the  Supreme  Court  has  not  been  creditable  to  that 
body  as  the  embodiment  of  the  highest  judicial  author- 
ity of  the  Nation.  Justice  Grier  seems  to  have  been 
especially  sensitive  to  the  unfavorable  effect  the  action 
of  the  Court  in  postponing  the  decision  would  have 
on  its  reputation  and  influence,  and  when  the  case  was 
called,  read  a  brief  document,  strongly  phrased,  ex- 
pressing his  sense  of  the  shame  and  dishonor  which  the 
Court  had  incurred.  He  had  held  no  counsel  with  his 
Associates,  and  his  action  took  both  them  and  the  pub- 
lic by  surprise,  and  still  causes  much  excited  conmient 
at  Washington.'*  Benjamin  R.  Curtis  wrote  that: 
"Congress,  with  the  acquiescence  of  the  country,  has 
subdued  the  Supreme  Court,  as  well  as  the  President." 
And  Welles  in  his  diary  took  a  despairing  view  of  the 
situation : 

March  SO,  1868.  The  Judges  of  the  Supreme  Court  have 
caved  in,  fallen  through,  failed  in  the  McCarcUe  Case.  Only 
Grier  and  Field  have  held  out  like  men,  patriots,  Judges 
of  nerve  and  honest  independence.  These  things  look 
ominous  and  sadden  me.  I  fear  for  my  country  when  I 
see  such  abasement.  Fear  of  the  usurping  Radicals  in 'Con- 
gress has  intimidated  some  of  these  Judges,  or  like  reckless 
Democratic  leaders,  they  are  willing  their  party  should 
triumph  through  Radical  folly  and  wickedness.  These  are 
indeed  evil  times !  Seward  has  on  more  than  one  occasion 
declared  that  he  controlled  Judge  Nelson.  Whether  he  is, 
or  has  been,  intriguing  in  the  matter,  or  taken  any  part  is 
a  problem.  The  action  of  Congress,  and  particularly  the 
Senate  in  taking  from  the  Supreme  Court  certain  powers 
to  prevent  a  decision  in  the  McCardle  Case  is  shameful,  and 
forebodes  an  unhappy  future  to  the  country.  There  is  no 
exercise  of  reason,  judgment,  intelligence  or  patriotism  by 


206  THE  SUPREME  COURT 

the  Radical  majority  on  any  subject  whereby  their  party 
is  affected.  Truth,  justice,  right,  law  and  Constitution  are 
broken  down  and  trampled  under  foot  by  Senators.  I  say 
this  in  sorrow. 

The  National  Intelligencer  said  that  Grier's  protest 
was  rendered  "with  a  manifestation  of  much  emotion'*, 
and  that  it  was  an  "everlasting  memorial"  to  his 
honor.  "  Well  does  he  anticipate  the  inevitable  imputa- 
tion of  weak  evasion  of  a  duty,  whose  obligation  is  in- 
exorable in  proportion  to  the  peril  threatened  by  its 
performance." 

While  there  was  some  justification  for  the  view  that 
the  Court  had  not  been  firm  in  its  stand,  it  must  be 
admitted  that,  in  view  of  the  fact  that  the  Chief  Jus- 
tice was  presiding  in  the  Impeachment  Trial  of  the 
President,  it  was  probably  wiser  on  the  part  of  the 
Court  to  postpone  arguments  on  so  important  an  issue 
until  there  should  be  a  full  Court;  and  the  intima- 
tions that  its  action  was  influenced  by  the  political 
situation  were  clearly  unfair,  in  view  of  its  previous 
courageous  action  in  sustaining  its  jurisdiction  over 
the  case.^  That  the  Court  could  not  escape  the  issue 
presented  to  it  by  Congress  had  been  shown^  four  days 
before  its  adjournment,  when  an  original  petition  for 
habeas  corpus  was  presented  to  it,  in  a  case  arising  in 
Florida  where  two  men  were  held  by  the  military  for  the 
murder  of  a  negro.  This  case  would  inevitably  require  a 
decision  on  the  Reconstruction  Laws,  at  the  next  Term.* 

'  Chief  Jiutioe  Chase  wrote  his  views  in  a  letter  in  September,  1868,  as  follows : 
"I  hold  my  old  faiUi  in  universal  suffrage,  in  Reconstruction  upon  that  basis,  in 
universal  amnesty,  and  in  inviolate  public  faith;  but  I  do  not  believe  in  military 
government  for  American  States,  nor  in  military  commissions  for  the  trial  of  Amer- 
ican dtisens,  nor  in  the  subversion  of  the  Executive  and  Judicial  Departments  of 
the  Genend  Government  by  Congress."    Oreen  Bag  (1902),  XIV. 

*  This  case  (not  reported)  of  Ex  'parte  Martin  and  Gilly,  in  which  a  writ  was 
granted,  returnable  at  the  December,  1869,  Term,  seems  not  to  have  been  pressed ; 
for  references  to  it,  see  Chicago  Republican,  March  28, 1868 ;  Indianapolis  Journal^ 
Maich  88»  April  1,  1868 ;  National  Intelligeneer,  March  81,  1868. 


RECONSTRUCTION  207 

With  the  passage  of  the  Act  of  March  27,  1868,  Con- 
gress reached  the  limit  of  its  attacks  upon  the  Court. 
A  reaction  in  favor  and  support  of  that  tribunal  at 
once  arose.  The  acquittal  of  President  Johnson,  in 
May,  1868,  broke  the  power  of  the  Radicals.  Both 
Congress  and  the  country  at  large  acquired  a  cooler 
and  saner  point  of  view.  Many  of  the  Southern  States, 
reluctantly  accepting  Reconstruction  as  an  ineluctable 
fact,  ratified  the  Fourteenth  Amendment  and  were 
readmitted  to  participate  in  the  Government.  And 
finally,  in  the  spring  of  1869,  several  decisions  of  the 
Court  itself  seemed  to  give  assurance  that  there  would 
be  no  judicial  overthrow  of  Congressional  plans. 

Encouragement  appeared  to  be  first  a£Porded  when 
the  Court  dismissed  from  its  docket  the  indictment  of 
Je£Person  Davis  for  treason.  For  four  years,  the  ques- 
tion whether  the  Southern  participants  in  the  Civil 
War  were  guilty  of  treason  had  been  involved  in  this 
case,  and  had  never  been  decided  authoritatively  in 
any  other  case  in  the  Federal  Courts.  Davis  had  been 
captured  on  May  10,  1865,  and  had  been  indicted  in 
the  District  of  Columbia,  and  later  in  the  United  States 
District  Court  in  Virginia ;  but  as  it  had  been  generally 
felt  that  a  trial  "in  the  hotbed  of  treason  by  a  jury  of 
sympathizing  traitors  would  be  a  transparent  farce  ",^ 
he  had  been  kept  by  the  military  authorities  in  Fortress 
IVjtonroe.  Finally,  on  October  12,  1866,  Attorney- 
General  Stanbery  advised  his  transfer  to  the  civil  au- 
thorities; on  refusal  of  compliance  by  the  military, 
his  transfer  was  ordered  by  the  District  Court  on  a 

^  Pkihddjfhia  Inquirer,  May  12,  1866;  see  especiaUy  ibid,,  April  10,  May  17, 
June  8,  13,  1866,  May  8,  11,  13,  15,  1867,  for  full  account  of  the  various  proceed- 
ings; see  also  Cleoeiand  Herald,  May,  1867,  paseim.  See  NoUa  of  Col.  W.  G. 
Moore,  Private  Secretary  to  President  Johnson,  in  Amer.  HUt.  Rev.  (1918),  XIX, 
giving  account  of  a  Cabinet  Meeting  of  May  7, 1867,  at  which  the  Pre^iident  ordered 
the  War  Department  to  turn  Davis  over  to  the  civil  authorities. 


208  THE  SUPREME  COURT 

writ  of  habeas  corpus,  May  12,  1867,  and  he  was  re- 
leased on  bail.  While  the  Radical  Republicans  were 
confident  that  all  "Rebels**  were  traitors,  there  had 
been  grave  doubts  expressed  by  many  at  the  North 
(including  most  of  the  Bar)  whether  a  military  offi- 
cer of  the  Confederate  Government  could  legally  be 
held  to  be  guilty  of  treason.  Many  others,  like  Horace 
Greeley,  had  believed  it  to  be  bad  policy  to  press  the 
point,  and  had  advocated  the  release  of  Davis.^  Many, 
however,  had  urged  that  the  trial  should  be  pressed  in 
order  that  the  question  of  law  might  be  finally  decided. 
"The  trial  of  Mr.  Davis,  if  it  can  be  conducted  in  a 
satisfactory  manner,  will  have  some  important  and 
beneficial  results.  An  honest  jury  cannot  fail  to  find 
the  prisoner  guilty,  as  far  as  the  mere  facts  are  con- 
cerned,** said  the  Nation  in  1867.  "The  real  contro- 
versy will  be  before  the  Court,  to  determine  whether 
those  facts  constitute  treason.  No  authoritative  de- 
cision has  yet  been  rendered  upon  that  question.  The 
only  convictions  for  treason  against  the  United  States, 
so  far  as  we  are  aware,  took  place  in  California  and 
Kentucky  before  the  United  States  District  Courts. . . . 
The  Kentucky  convict  was  a  citizen  of  Kentucky  and 
could  only  have  made  his  case  worse  by  justifying  under 
the  authority  of  Tennessee  and  a  seceded  and  foreign 
State.  The  California  party  was  made  up  of  nonde- 
scripts from  various  Nations  and  States,  all  of  them 
residents  of  California  and  therefore  clearly  without 
excuse  for  hostile  acts.  But  no  Court  has  yet  had  an 
opportunity  to  determine  whether  the  commander  of 

^  To  Greeley,  Chief  Justice  Chase  wrote,  June  86,  1867,  advising  him  to  read 
Webster's  reply  to  Hayne,  and  saying:  "You  will  find  no  hint  that  nullifiers,  pur- 
suing their  nullification  to  civil  war,  ceased  to  be  traitors,  on  becoming  engaged  in 
such  a  war." 

ThR  American  Law  Amew  (Jan.,  1867),  I,  387,  said  that  "the  continued  post- 
ponement of  the  trial  of  this  State  prisoner  has  been  the  subject  of  bitter 
altercation.** 


RECONSTRUCTION  209 

a  regular  army,  conducting  war  against  the  United 
States  upon  equal  terms  and  in  the  name  of  a  hostile 
government,  can  be  convicted  of  treason/*  ^ 

Owing  to  the  unwillingness  of  Chief  Justice  Chase 
to  hold  Court  in  Virginia  while  the  military  authori- 
ties were  in  control,  and  to  many  other  reasons,  the 
trial  did  not  occur  until  December  S,  1868.  By  that 
time,  the  war  passion  against  Davis  had  died  down ; 
the  interest  in  the  law  of  treason  had  dissipated ;  and 
the  adoption  of  the  Fourteenth  Amendment  had  given 
rise  to  another  question  in  the  case,  namely,  whether 
the  provision  for  disqualification  for  office  established 
by  the  third  clause  of  that  Amendment  was  intended 
to  exclude  any  other  form  of  punishment  for  the  acts 
to  which  it  referred.  Chief  Justice  Chase  and  Dis- 
trict Judge  Underwood,  sitting  in  the  District  Court, 
had  di£Pered  in  opinion  on  this  latter  new  question  of 
law,  and  the  case  had  accordingly  been  certified  to  the 
Supreme  Court,  December  5,  1868.  Finally,  on  Feb- 
ruary 19,  1869,  the  Government  not  wishing  to  press 
the  case  further,  it  was  dismissed  from  the  docket  — 
a  disposition  of  the  affair  which  commended  itself  to 
the  Bar  and  to  the  general  public;  **and  so  a  ridicu- 
lous farce  ends,'*  said  Harper^ s  Weekly.^ 

Soon  after  the  end  of  the  Davis  Case,  the  McCardle 
Case  was  reached  for  final  argument,  on  March  19, 
1869,  on  the  question  of  the  power  of  Congress  to  pro- 
hibit the  Court  from  deciding  a  pending  case ;  and  on 
April  12,  the  Court  rendered  a  unanimous  decision  that 
the  statute  had  taken  away  its  jurisdiction,  and  that 
therefore  it  could  not  proceed  to  pronounce  judgment. 

>  Nation,  May  10, 1867. 

'  The  certificate  of  divuion  waa  filed  in  the  Supreme  Court,  Dec.  7,  1868 ;  Trial 
ofjefferaon  Davis,  by  David  K.  Wataon,  YaU  Law  Journal  (1915),  XXIV ;  Harper* 9 
Weeldy,  Jan.  SO,  1860;  Amer.  Law  Rev.  (Jan.,  1860),  III,  868;  Springfield  Weekly 
Republican,  Nov.  28,  Dec.  26,  1868,  Jan.  2,  1860. 


210  THE  SUPREME  COURT 

"Judicial  duty/'  said  the  Chief  Justice,  "is  not  less 
fitly  performed  by  declining  ungranted  jurisdiction 
than  in  exercising  firmly  that  which  the  Constitution 
and  the  laws  confer."  While  appellate  jurisdiction 
of  the  Supreme  Court,  he  held,  was  not  derived  from 
Acts  of  Congress  but  from  the  Constitution,  yet  it  was 
conferred  "with  such  exceptions  and  under  such  regu- 
lations as  Congress  shall  make."  Congress  had  chosen 
to  make  a  specific  and  positive  exception  in  this  case ; 
and  the  Court  was  "not  at  liberty  to  inquire  into  the 
motives  of  the  Legislature."  Ex  parte  McCardle,  7 
Wall.  506.  On  the  same  day,  the  Court  rendered  an 
opinion  in  a  most  important  case  involving  the  status 
of  the  seceding  States,  —  Texas  v.  Whiter  7  Wall.  700; 
and  while  it  did  not  actually  decide  the  question  of  the 
validity  of  the  Reconstruction  Laws,  its  general  lan- 
guage gave  much  encouragement  to  their  supporters. 
In  this  case,  the  State  of  Texas,  through  its  Governor, 
brought  an  original  suit  in  equity  to  enjoin  the  pay- 
ment of  certain  State  bonds  owned  by  the  State  prior  to 
the  war  and  negotiated  by  the  Confederate  State  Gov- 
ernment. The  first  question  presented  to  the  Court 
was:  "Is  Texas  a  State  of  the  Union,  and  as  such, 
capable  of  bringing  suit?"  It  was  contended  by  the 
defendants  that  Texas,  having  seceded  and  not  yet 
being  represented  by  Senators  and  Representatives  in 
Congress,  was  still  out  of  the  Union.  This  was  the 
position  which  Thaddeus  Stevens  and  other  Radicals 
had  taken  in  Congress.  It  was  also  contended  that  a 
Governor  elected  before  the  passage  of  the  Reconstruc- 
tion Acts  was  illegally  elected  and  incapable  of  author- 
izing suit.  The  Court,  by  Chief  Justice  Chase,  held 
that  it  was  unnecessary  to  inquire  into  or  pronounce 
judgment  upon  "the  constitutionality  of  this  legisla- 
tion so  far  as  it  relates  to  military  authority  or  to  the 


RECONSTRUCTION  21 1 

paramount  authority  of  Congress  '* ;  that  the  ordinance 
of  secession  by  Texas  was  a  nullity ;  that  Texas  had 
always  remained  a  State  of  the  Union  within  the 
purview  of  the  Constitution,  which,  in  the  memorable 
words  of  Chase,  *^m  all  its  provisions  looks  to  an  inde- 
structible Union,  composed  of  indestructible  States. 
When,  therefore,  Texas  became  one  of  the  United 
States,  she  entered  into  an  indissoluble  relation/'  While 
her  obligations  to  the  Union  remained  the  same,  her 
relations  after  secession  changed, and'* these  new  rela- 
tions imposed  new  duties  upon  the  United  States.  The 
first  was  that  of  suppressing  the  rebellion.  The  next 
was  that  of  reestablishing  the  broken  relation  of  the 
State  with  the  Nation.*'  This  duty  Congress  had  the 
power  and  the  duty  to  perform,  under  the  provision 
of  the  Constitution  guaranteeing  to  the  States  a  re- 
publican form  of  Government.  But  as  the  President 
had  appointed  a  provisional  Government,  which  was 
in  actual  operation  when  Congress  passed  its  Recon- 
struction Acts,  and  which  had  authorized  this  suit, 
the  Court  held  that  the  suit  was  instituted  by  a  com- 
petent authority  and  by  a  State  of  the  Union.  As  to 
the  right  of  the  bondholders  in  the  case,  the  Court  held 
that  it  must  be  determined  by  the  purposes  for  which 
the  bonds  were  negotiated;  that  while  Texas  was  le- 
gally always  a  State  of  the  Union,  it  did  not  follow  that 
all  her  actions  and  laws,  while  in  fact  a  member  of  the 
Confederacy,  were  to  be  held  valid ;  and  that  statutes 
which  were  "necessary  to  peace  and  good  order  among 
citizens"  might  be  valid,  but  that  those  passed  in 
furtherance  or  support  of  the  rebellion,  were  to  be  re- 
garded as  absolutely  void.^ 

^  The  case  was  argued  by  George  W.  Paschal  and  R.  T.  Merrick  against  James 
Hughes,  Albert  Pike,  Robert  W.  Johnson,  J.  M.  Carlisle,  P.  Phillips,  S.  S.  Cox  and 
J.  W.  Moore.  See  The  Case  cj  Texas  v.  WkUe,  by  William  W.  Pierson,  SouihweeUm 
HiH.  Quart.  (1915).  XVni.  XIX. 


812  THE  SUPREME  COURT 

This  decision  has  constituted  one  of  the  landmarks 
in  American  history.  It  settled  forever  the  question 
whether  a  State  could  legally  secede^  and  it  confirmed 
the  permanence  of  the  Union.  Nevertheless,  it  has 
frequently  been  considered  logically  unsatisfactory  in 
its  reasoning;  and  the  dissenting  opinion  of  Judges 
Grier  (concurred  in  by  Swayne  and  Miller)  seems  more 
easily  to  be  supported,  when  he  said  that  the  status  of 
Texas  was  ^*to  be  decided  as  a  political  fact,  not  as  a 
legal  fiction.  ...  If  I  regard  the  truth  of  history  for 
the  last  eight  years,  I  cannot  discover  the  State  of  Texas 
as  one  of  these  United  States.  ...  I  am  not  disposed 
to  join  in  any  essay  to  prove  Texas  to  be  a  State  of  the 
Union  when  Congress  have  decided  that  she  is  not.  .  .  • 
Politically,  Texas  is  not  a  State  in  this  Union.  Whether 
rightfully  out  of  it  or  not  is  a  question  not  before  the 
Court.*'  The  decision  came,  however,  as  a  welcome 
solution  to  a  greatly  vexed  and  debated  question ;  and 
Chase's  opinion,  though  adverse  to  the  extreme  claims 
of  Thaddeus  Stevens  and  the  Radicals,  who  deemed  the 
seceding  States  entirely  out  of  the  Union  and  properly 
subject  to  any  legislation  Congress  chose  to  enact,  was 
equally  adverse  to  the  claim  of  the  Democrats,  who 
held  that  Congress  had  no  power  whatever  to  withhold 
from  these  States  any  of  the  rights  which  they  had 
possessed  before  the  war.  The  general  views  and  plans 
of  the  more  moderate  Reconstruction  statesmen  were 
in  complete  consonance  with  the  language  of  the  opin- 
ion ;  and  the  growing  fears  lest  the  Court  would  inter- 
fere with  their  plans  were  thus  allayed.  An  able  opin- 
ion rendered  by  Attorney-General  Hoar,  following  the 
decision  of  Texas  v.  White  and  sustaining  the  legality 
of  military  trials  in  Texas,  gave  further  comfort  to  the 
Reconstructionists.  "The  Act  of  March  2,  1867,  is, 
in  my  opinion,"  said  Hoar,  "a  legislative  declaration 


RECONSTRUCTION  213 

that  in  Texas  the  war  which  sprang  from  the  rebellion 
is  not  to  all  intents  and  purposes  ended ;  '*  and  he  held 
that  other  statutory  legislation  and  judicial  declara- 
tions recognizing  the  end  of  the  war  were  "not  incon- 
sistent with  the  proposition  that,  for  some  purposes, 
the  rights  of  war  are  not  ended."  ^ 

In  spite  of  these  judicial  decisions,  and  in  spite  of 
the  action  of  Congress  in  abolishing  the  Court's  ap- 
pellate jurisdiction  in  habeas  corpus  proceedings  in- 
stituted under  the  Act  of  1867,  it  appeared  in  the  fall 
of  1869  that  there  was  still  a  possibility  that  the  Court 
might  be  required  to  render  a  decision  on  the  legality 
of  the  Reconstruction  Laws.  On  October  15, 1869,  the 
case  of  Ex  parte  Yerger^  8  Wall.  85,  was  brought  up  for 
argument  by  Philip  Phillips  and  J.  M.  Carlisle  against 
Attorney-General  Ebenezer  R.  Hoar.  This  suit  was 
a  petition  for  habeas  corpus  originally  made  to  a  Fed- 
eral Circuit  Court  in  Mississippi  by  another  editor,  who 
had  been  imprisoned  by  the  military,  but  who  on  de- 
nial of  his  writ  had  taken  an  appeal  to  the  Supreme 
Court,  under  the  provisions  of  the  original  Judiciary 
Act  of  1789,  and  not  under  the  repealed  Act  of  1867. 

One  week  after  the  argument,  the  Court,  through 
the  Chief  Justice,  rendered  a  decision  exhaustively  re- 
viewing the  Court's  powers  under  the  various  habeas 
corpus  statutes,  and  upholding  its  jurisdiction  of  this 
appeal,  under  the  old  Act  of  1789.  By  this  unexpected 
ruling,  the  road  was  left  open  for  a  full  argument  of 
the  whole  question  of  the  Reconstruction  legislation, 
when  the  case  should  be  reached  for  hearing  on  the 
merits.  With  such  a  situation  confronting  them,  the 
Radicals  in  Congress  determined  upon  their  most  radi- 
cal  move   against   the  Judiciary.     On   December   9, 

1  See  Amer,  Law  Bm,  (Dec.,  I860},  IV,  opinion  of  Hoar  to  the  Secretary  of  War, 
in  Wea90r'9  Caae.  May  81.  1869. 


214  THE  SUPREME  COURT 

1869,  Senator  Trumbull  reported  a  bill  which  was  en- 
titled "to  define  the  jurisdiction  of  the  Supreme  Court 
in  certain  cases  *',  but  which  was  in  reality  a  bill  to  de- 
stroy the  constitutional  function  of  the  Court  —  a  bill 
which  was  aptly  termed  the  "bright,  consummate 
flower  of  the  military  doctrine/'  ^  It  declared  that  no 
civil  government  existed  in  Virginia,  Mississippi  and 
Texas  and  that  none  should  be  recognized  by  the  Ex- 
ecutive or  by  the  Judiciary  until  Congress  should  de- 
cide ;  it  further  declared  that  the  Reconstruction  Laws 
were  "political  in  their  character,  the  propriety  or  va- 
lidity of  which  no  judicial  tribunal  was  competent  to 
question",  and  it  prohibited  the  Supreme  Court  "from 
entertaining  jurisdiction  of  any  case  growing  out  of 
the  execution  of  said  Acts " ;  and  it  suspended  all  ap- 
peals growing  out  of  such  execution,  either  in  habeas 
corpus  cases  or  otherwise. 

While  this  bill  was  welcomed  by  the  Radical  Repub- 
licans, conservative  men  of  both  parties  felt  that  the 
proposed  action  was  far  too  extreme.  One  of  the  lead- 
ing Western  Republican  papers,  expressing  its  opposi- 
tion and  regret  at  this  renewal  of  attack  on  the  Court, 
stated  that  Congress  had  "no  power  to  arbitrarily  and 
conclusively  decide  what  issues  the  National  Judiciary 
cannot  take  into  consideration",  and  that  the  Court 
must  possess  the  power  to  determine  what  questions 
are  political  merely,  and  what  questions  involve  per- 

^  New  York  World,  Dec.  10, 11, 1869.  Section  1  of  this  bill  provided  that :  "  Under 
the  Constitution,  the  judicial  power  of  the  United  States  does  not  embrace  politi- 
cal power,  or  give  to  the  judicial  tribunals  any  authority  to  question  the  decisions 
of  the  political  departments  of  the  Government  on  political  questions;  and  it  is 
hereby  declared  that  all  Courts  of  the  United  States  in  the  administration  of  jus- 
tice shall  be  bound  by  the  decisions  of  the  political  departments  of  the  Government 
on  political  questions."  Section  2  provided  that:  "It  rests  with  Congress  to  decide 
what  Government  is  the  established  one  in  a  State,  and  that  it  is  hereby,  in  ac- 
cordance with  former  legislation,  declared  that  no  civil  State  Government  exists 
in  Viiiginia,  Mississippi,  or  Texas."  kid  Cong*,  2d  Sess,,  167  el  eeq.,  speech  of 
Trumbull  Dec.  16,  1869. 


RECONSTRUCTION  215 

sonal  rights  and  liberties.  The  power  of  the  Courts 
to  decide  the  question  of  constitutionality  ^*  arises  out 
of  the  circiunstances  of  the  necessity  to  decide  which  of 
two  laws  shall  prevail."  And  it  concluded  with  this 
striking  praise  of  the  Court :  **K  this  country  possesses 
an  able,  experienced,  conscientious  and  universally 
satisfactory  Bench,  it  is  to  be  found  in  our  Supreme 
Court.  It  makes  its  decisions  under  the  eyes  of  the 
whole  legal  fraternity.  If  a  conspicuous  error  should  be 
conmiitted,  it  could  not  escape  detection ;  and  the  ex- 
posure, through  the  press  of  the  country,  would  be  en- 
tirely equal  to  the  error  committed.  As  yet,  no  one 
has  presumed  to  question  the  purity  of  the  motives 
which  have  obtained  hitherto  in  the  adjudication  of 
mooted  questions."  ^  The  New  York  World  said :  "If 
Congress  can  force  the  judicial  power  to  yield  to  it,  the 
Constitution  is  annulled ;  if  it  is  in  the  power  of  Con- 
gress to  say  that  any  law  of  the  United  States  can  be 
made,  into  whose  constitutional  validity,  when  a  case 
arising  under  it  has  taken  a  judicial  form,  the  judicial 
power  shall  not  inquire,  then  Congress  is  above  the 
Constitution,  and  all  its  restraints,  prohibitions  and  in- 
junctions are  so  much  waste  paper.  .  .  •  The  design 
is  to  emancipate  Congress  from  all  constitutional  re- 
straints which  arise  under  any  power  that  Congress 
chooses  to  assert  is  political  in  character."  And  the 
Nation  asked :  "If  a  majority  of  Congress  is  sure  not 
to  do  wrong,  why  have  any  Constitution  at  all  ?  Why 
restrain  this  body  of  sages  by  any  restrictions  what- 
ever? Why  not  let  them  make  their  own  Constitu- 
tion, every  session  ?  Indeed,  why  administer  any  oath 
of  office?"    And  it  said  further  that  there  existed  no 


>  Ckieago Republican,  Dec.  11,  1869;  ibid.,  Dec  15,  said  that:  "Trumbuirs  bill 
will  hardly  become  law  in  its  preseiit  form.  It  does  not  meet  with  much  favor, 
bat  it  may  increase  in  popularity."    Nmo  York  World,  Jan.  9, 1870. 


216  THE  SUPREME  COURT 

need  of  such  a  measure  to  check  any  supposed  tendency 
of  the  Court  to  usurp  Congressional  power ;  that  the 
dangers  of  this,  "feared  by  our  democratic  fathers,  have 
proved  not  to  have  a  particle  of  foundation.  Indeed 
the  Judiciary  is  the  branch  of  the  Grovernment  and  the 
only  one  which  has  been  steadily  declining  in  influence 
and  authority  during  the  last  fifty  years.  Nearly 
every  tendency  of  the  day  has  told  against  the  increase 
of  its  power,  while  there  is  hardly  one  which  has  not 
helped  to  increase  the  power  of  the  Executive  and  the 
Legislature.'' 

But  there  were  Senators  who  desired  to  go  even  fur- 
ther than  Trumbull,  and  on  December  13,  Senator 
Charles  D.  Drake  of  Missouri  delivered  a  violent 
speech  advocating  a  bill  to  provide  that  no  Court 
created  by  Congress  should  have  any  power  to  adjudge 
invalid  any  Act  of  Congress,  and  to  prohibit  the  Su- 
preme Court  in  its  appellate  jurisdiction  from  aflirm- 
ing  any  such  judgment  of  invalidity  by  an  inferior 
Court  —  "a  bill  to  abolish  the  Constitution,'*  said  the 
New  York  World}  "It  is  the  distinguishing  function 
of  a  Judicature  to  declare  the  law,  no  Court,  high  or 
low,  being  able  to  decide  any  case  without  deciding  at 
the  same  time  what  is  the  law  applicable  to  that  case. 
This  results  from  the  very  essence  of  the  judicial  func- 
tion, nay,  it  is  inseparable  from  the  nature  of  things. 
If  the  laws  appertaining  to  the  question  in  litigation 
are  contradictory,  it  is  obvious  that  the  Court  must 
decide  which  law  is  valid  and  which  null,  before  it  can 
reach  a  rule  for  rendering  justice  to  the  parties."  The 
Nation  opposed  Drake's  bill,  on  the  ground  that  "the 
action  of  Congress  of  late  years  has  not  been  such  as 

>  NatUm^  Dec.  2,  16,  28,  1809;  New  York  Herald,  Dec.  15.  1869;  Independent, 
Dec.  16, 1869;  Ckieaffo  Republican,  Dec.  8,  1869.  The  New  York  Time$,  Dec.  14, 
1869,  in  an  account  of  the  debate,  stated  that  Drake's  speech  was  not  favorably 
xeoeived  in  the  Senate,    list  Cong,,  2d  Se$8.,  St,9>l  el  aeq. 


RECONSTRUCTION  217 

to  entitle  it  to  this  supreme  power."    The  New  York 
Heraldy  speaking  of  the  "riotous  spirit  which  pre- 
vails in  law-making  bodies  where  one  side  has  an  over- 
whelming majority",  said  very  sanely:   "The  framers 
of  the  Constitution  seem  to  have  supposed  that  the 
best  Congress  we  could  ever  get  would  still  be  composed 
of  human  creatures,  and  that,  in  virtue  of  its  humanity. 
Congress  might  be  liable  to  err.     They  supposed  also 
that  the  representatives  of  the  people  would  be  drawn 
from  all  the  fields  of  national  activity,  that  they  would 
be  merchants,  miners,  farmers,  ship  carpenters,  shoe- 
makers, schoolteachers,  bankers,  drovers,  etc.,  and  that 
Congress  might,  therefore,  be  an  assembly  not  learned 
in  the  law.     Whilst,  therefore,  the  crude  decrees  of 
such  a  body  might  oppress  any  man  in  his  rights,  it 
was  determined  that  the  people  should  always  have  an 
appeal  to  a  given  number  of  men  who  have  made  the 
law  the  study  of  a  lifetime."    Even  the  radical  In- 
dependent was  inclined  to  believe  that  there  was  no  im- 
mediate necessity  for  either  Trumbull's  or  Drake's 
bill,  and  that  the  Court  would  "hardly  make  a  contest 
with  Congress.     Its  action  last  winter  proved  that  it 
does  not  choose  to  measure  its  strength  with  the  Na- 
tional Legislature.    It  looked,  one  month  ago,  as  if 
Mr.  Chase  and  his  Associates  were  bent  on  precipitat- 
ing a  decision  against  the  Reconstruction  Acts,  and  as 
if  Yerger  would  be  set  free ;  but  the  Court  will  pause 
in  its  course,  while  Congress  acts  on  the  measure,  for 
it  very  well  knows  where  victory  lies  in  such  a  con- 
troversy. ...    If  Congress  takes  from  it  jurisdiction 
in  political  questions  and  it  refuses  to  obey.  Congress 
can-  impeach  and  remove  the  Court.    But  it  will  not 
come  to  that.    The  good  sense  of  a  majority  of  the 
Justices  will  avert  any  such  conflict."    The  Chicago 
Republican  made  the  following  eloquent  defense  of 


218  THE  SUPREME  COURT 

the  Court:    ^*A  more  dangerous,  not  to  say  absurd, 
attempt  to  destroy  the  Courts  and  make  Congress  su- 
preme could  not  be  conceived.  .  .  .    What  is  this  but 
declaring  Congress  as  the  supreme  authority  of  the 
Nation,  placing  the  country  under  an  oligarchy,  none 
the  less  despotic  because  the  people  themselves  elected 
its  members?    The  Courts,  sitting  in  calm  isolation, 
removed  from  partisan  prejudices  and  often  exciting 
passions  of  the  hour,  were  especially  instituted  as  checks 
and  balances  against  attempted  usurpation  by  either 
the  Executive  or  the  Legislative  departments,  to  pre- 
vent wrong  or  harm  from  hasty  and  inconsiderate 
legislation,  or  from  misconception  or  wrongful  appropri- 
ation of  power  by  the  Executive.  .  .  .    The  truth  is, 
Mr.  Drake's  proposition  is  in  outrageous  repugnance 
to  the  whole  genius  of  republican  government ;  and  he 
will  find,  we  believe,  but  few  sympathizers  with  his 
revolutionary  scheme,  either  in  Congress  or  among  the 
people.     We  cannot  give  up  our  Courts  at  present, 
even  though  experience  has  shown  that  they  are  not 
always    infallible.    They   are   safer    to  trust   to,    in 
matters  of  Constitution  and    law,   than    a   tribunal 
selected  as  Congress  is.'* 

Meanwhile,  before  Congress  took  any  action  on  the 
bills,  a  situation  had  arisen  in  the  Court  itself  (as  will 
be  described  in  the  next  chapter)  which  made  action 
seem  less  necessary.  Moreover,  by  agreement  between 
Yerger's  counsel  and  the  Attorney-General,  stipula- 
tions were  entered  into  by  which  Yerger  was  to  be  pro- 
tected from  the  military,  and  his  case  became,  there- 
fore, a  moot  one  which  required  no  argument  at  the 
present  time.^    Thus,  this  hotly  contested  legal  ques- 

1  See  Nmo  York  World,  Dec.  2,  1869»  Jan.  9,  1870.  Later,  Congress  took  cog- 
nizance of  the  case,  and  the  House  requested  information  as  to  the  delay  in  the 
execution  of  Yerger's  sentence.  See  Washington  Chronicle,  Feb.  6,  1870.  The 
final  disposition  of  this  case  was  reported  in  the  New  York  Times,  March  18, 1870. 


RECONSTRUCTION  219 

tion  of  the  validity  of  the  Reconstruction  Laws  dis- 
appeared from  the  Court's  history,  without  any  ex- 
press decision.^ 

"In  the  Supreme  Court  today  (March  11)  Mr.  Phillips  stated  that  the  counsel  for 
Yerger,  who  was  convicted  by  a  military  commission  of  the  killing  of  Col.  Crane 
and  sentenced,  having  received  authentic  information  that  the  militaiy  authori- 
ties had  turned  over  the  prisoner  to  the  dvil  authorities  of  the  State  of  Mississippi, 
the  object  of  the  petition  was  fulfilled,  and  therefore  he  moved  that  it  be  dis- 
miBsed.*'  In  February,  1870,  another  case  arose  in  the  Court  which  might  have 
called  for  a  decision  on  the  Reconstruction  Acts,  when  George  R.  Kennedy,  tried 
by  military  commission  in  Texas  on  charge  of  murder,  applied  to  the  Court  for  a 
writ  of  habeas  corpus.    See  Boston  Daiiy  Adoertiser,  Feb.  19, 1870. 

*  It  was  not  until  as  late  as  1875  that  the  Court  (whose  membership  by  that  date 
had  been  considerably  changed)  gave  an  intimation  in  Raymond  v.  Thonuu,  01 
U«  S.  lit,  that  it  mi^t  possibly  hold  the  Reconstruction  Acts  to  be  lawful,  but  the 
case  was  actually  decided  on  a  subordinate  point. 


CHAPTER  THIRTY-ONE 

THE  LEGAL  TENDER  CASES 

1860-1871 

The  disposition  of  the  Yerger  Case,  in  December, 
1869,  having  removed  all  present  danger  of  any  judi- 
cial decision  on  Reconstruction,  another  question  then 
came  to  the  front,  —  the  validity  of  the  war  legislation 
making  the  paper  currency  (the  Treasury  notes)  legal 
tender.  Though  the  first  of  these  Legal  Tender  Acts 
had  been  passed  as  early  as  February  25,  1862,  by  a 
singular  chance,  no  decision  as  to  its  validity  had  yet 
been  reached  in  1869.  The  constitutional  issue  had 
been  involved  in  a  case  which  came  up  on  writ  of  error 
to  the  New  York  State  Court,  in  1863,  Roosevelt  v. 
Meyer,  1  Wall.  512,  but  the  Court  had  decided  in  that 
year  that  it  had  no  jurisdiction  under  the  Judiciary 
Act.^  In  1865,  however,  the  question  was  presented 
in  a  case  in  which  the  Court  had  undoubted  jurisdiction 
on  writ  of  error  to  the  Kentucky  Court  of  Appeals, 
Hepburn  v.  Griswold,  8  Wall.  603,  and  it  was  first  argued 
at  the  December  Term  of  1867.  On  the  suggestion  of 
Attorney-General  Stanbery  as  to  the  great  public 
importance  of  the  question,  a  reargument  was  ordered 
for  the  next  Term,  with  leave  to  the  Government  to  be 
represented;  and  accordingly  on  December  10,  1868, 
it  was  reargued  by  Benjamin  R.  Curtis  and  Attorney- 
General  William  M.  Evarts,  against  Clarkson  N.  Pot- 

^  Nine  yean  later,  in  1872,  the  Court  held  that  this  decinon  had  been  erroneoua* 
and  accordingly  overruled  it.    TrAUoock  v.  WiUtm,  12  Wall.  887. 


THE  LEGAL  TENDER  CASES  221 

ter.^  The  probable  action  of  the  Court  had  been  the 
subject  of  long  and  excited  debate  in  the  community. 
On  the  one  side,  were  the  National  and  the  State  banks, 
the  mortgagees  and  creditors  who  demanded  payment 
in  gold ;  lined  up  with  these  interests  were  those  men 
who,  on  principle,  denied  the  right  of  the  Federal  Gov- 
ernment to  make  paper  currency  legal  tender,  and  op- 
posed legalized  cheating  through  the  enforced  pay- 
ments of  debts  in  depreciated  currency.  On  the  other 
side,  were  the  railroads,  the  municipal  corporations,  the 
mortgagors  of  land  and  other  debtors  who  now  sought 
to  pay,  with  a  depreciated  legal  tender  currency,  debts 
contracted  on  a  gold  basis  before  the  war;  and  with 
these  interests,  there  were  associated  all  those  men  who 
felt  strongly  that  the  Government  ought  not  to  be  de- 
prived of  a  power  which  they  considered  so  necessary 
to  its  existence  in  time  of  war.  But  while,  as  a  war 
measure,  issue  of  legal  tender  may  have  been  necessary, 
there  is  no  doubt  that  most  thoughtful  men  believed 
that  its  evils  outweighed  its  benefits,  and  agreed  with 
the  Nation^  when  it  said  that  "the  prevailing  laxity  in 
commercial  morals,  the  rise  of  notorious  cheats  into 
position  of  fame  and  wealth,  and  the  prostration  at 
their  feet  of  large  masses  of  private  property,  is  largely 
due,  not  simply  to  the  spirit  of  speculation  bred  by  the 
issue  of  irredeemable  paper,  but  to  the  sanction  given 
by  the  law  to  the  wholesale  cheating  by  fraudulent 
debtors  which  was  the  direct  result  of  the  Legal  Tender 
Act." 

Practically  every  State  Court  which  had  considered 
the  question  had  upheld  the  constitutionality  of  the 
law;   there  was  little  expectation  by  the  public  or  by 

^  The  Springfield  RepiMiean,  Feb.  15, 1868,  stated  that  on  Feb.  14,  the  Attorney- 
General  had  read  to  the  Court  a  letter  from  Secretary  of  the  Treasury  McCulloch 
asking  him  to  appear,  and  had  stated  that  he  had  had  no  time  to  prepare  and 
wished  a  postponement. 


222  THE  SUPREME  COURT 

the  Bar  that  the  Court  would  do  otherwise.^  Soon 
after  the  argument,  however,  the  rumor  spread  that 
its  decision  would  be  adverse;  and  thereupon,  strong 
appeals  were  made  in  the  press  that,  in  view  of  the 
ruinous  consequences  of  such  a  ruling,  the  Court 
should  postpone  decision.^  An  interesting  editorial  in 
the  Chicago  Republican  strongly  indorsed  this  rather 
preposterous  suggestion,  saying :  "  The  gloomy  prospect 
which  presents  itself  to  anyone  contemplating  the  results 
of  an  adverse  decision  ought  to  convince  Judges,  who  at 
the  same  time  are  statesmen,  that  a  decision  should  not 
be  given,  if  adverse.  •  •  .  It  is  plainly  the  general 
wish  of  the  country  that  this  tardy  and  ruinous  wisdom 
of  the  Supreme  Court  should  not  now  work  universal 
ruin,  if  the  decision  is  to  be  adverse  to  the  constitu- 
tionality of  the  Act.  Let  the  petty  cases  be  dismissed 
and  no  decision  be  given.  Harmless  inaction  is  better 
than  a  dangerous  act."^ 

While  unable  to  arrive  at  a  decision  in  this  case  dur- 
ing the  December,  1868,  Term,  the  Court  did  decide 
several  cases  in  which  it  passed  upon  subordinate  as- 
pects of  this  question.  In  Lane  County  v.  Oregon^  7 
Wall.  71,  it  considered  whether  Congress  had  the  power 
to  make  the  paper  war  currency  legal  tender  in  payment 
of  taxes  to  a  State,  and  while  intimating  that  Congress 
could  not  so  interfere  with  the  State  taxing  power,  it 
held  that  the  Legal  Tender  Acts  were  not  to  be  con- 

^  NaHan,  Feb.  10,  25,  1869 :  "The  Judges  of  most  of  the  SUte  Courts  to  whom 
it  has  been  submitted,  being  in  closer  dependence  on  popular  opinion  than  they 
have  ever  been  before,  have  not  unnaturally  shrunk  from  what  seemed  the  tre- 
mendous responsibility  of  gainsaying  what  so  many  good  men  had  been  saying, 
and  the  best  part  of  the  community  believing  for  so  long,  on  such  azi  exceedingly 
delicate  subject  as  the  value  and  power  of  the  currency  actually  in  use." 

*  Chieago  RepMiean,  Dec.  11,  14,  21,  1868. 

*This  editorial  also  stated  that  a  written  opinion  was  obtained,  though  with 
great  difficulty,  from  members  of  the  Court  in  favor  of  the  validity  of  the  Legal 
Tender  Act,  at  the  time  of  its  passage ;  and  that  it  is  now  stated  that  "its  authors 
will  be  glad  to  rewrite  it,  by  a  decision  declaring  the  Act  void." 


THE  LEGAL  TENDER  CASES  223 

strued  as  so  providing.  In  Bronson  v,  Rodes  and  Butler 
V.  Horwitz,  7  Wall,  229,  258,  the  Legal  Tender  Acts 
were  held  not  to  apply  to  obligations  calling  specifically 
for  payment  in  gold  and  silver  coin. 

One  reason  for  the  delay  in  the  decision  of  the  Legal 
Tender  Cases  had  undoubtedly  been  the  fact  that,  at 
this  time,  the  Court  had  been  reduced  in  number  to 
eight  Judges  by  the  operation  of  the  Act  of  1866 
(passed  to  deprive  President  Johnson  of  the  oppor- 
tunity of  filling  expected  vacancies),  and  hence  there 
was  danger  of  an  even  division  of  the  Court  on  the 
question.  This  situation  was  now  changed  by  the  ac- 
cession of  Grant  to  the  Presidency,  and  the  consequent 
enactment  of  a  statute  (the  Act  of  April  10,  1869),  in- 
creasing the  number  of  the  Court  to  nine,  and  author- 
izing the  President  to  nominate  an  additional  Judge  at 
the  next  session  of  the  Senate.  At  the  same  time. 
Congress  had  at  last  provided  a  long-desired  and  long- 
contested  judicial  reform,  by  establishing  a  new  Circuit 
Court  system  with  nine  new  Circuit  Judges,  but  with- 
out entirely  relieving  the  Supreme  Court  Judges  of 
Circuit  duty.^  To  fill  these  new  positions,  President 
Grant  made  nine  appointments,  based  largely  on  the 
reconunendation  of  his  Attorney-General,  Ebenezer 
Rockwood  Hoar  of  Massachusetts ;  ^  and  on  December 
14,  1869,  he  appointed  Hoar  to  the  vacancy  on  the  Su- 
preme Bench.  "  It  is  a  gratifying  proof  of  the  increased 
respect  in  which  the  Supreme  Court  is  held  that  we  do 
not  hear  of  any  attempt  to  foist  upon  it,  under  the 

^  As  late  as  1866,  the  American  Law  Review,  I,  807,  had  rejoiced  over  the  failure 
of  the  passage  of  Circuit  Court  bills  introduced  in  Congress,  April  2,  1866,  March 
5,  1867  (see  SM  Cong,,  Ut  Sue.;  Wth  Cong,,  let  8e$e.,  Senate  Special  Sees.) 
and  had  said:  "We  trust  that  so  nuschieyous  a  measure  will  never  receive 
the  assent  of  Congress.  Mr.  Webster  more  than  once  defeated  similar  proposi- 
tions. ...  It  has  been  well  designated  as  a  bill  to  prevent  the  Justices  of  the 
Supreme  Court  from  ever  learning  any  law." 

s  See  New  York  Times,  Dec  9,  1869,  for  detailed  criticism  of  the  Circuit  Court 
appointments. 


224  THE  SUPREME  COURT 

provisions  of  this  Act,  a  partisan  Judge/'  said  the 
Nation.  "There  seems  to  be  a  general  agreement  of 
opinion  that  no  such  appointment  should  be  made. 
The  reiterated  assertions  that  the  Attorney-General  is 
to  have  the  place  show  the  general  feeling  about  it. 
The  present  Chief  Justice  has  been  Mn  politics'  quite 
enough.  ...  If  Judge  Hoar  is  appointed,  the  appoint- 
ment will  be  an  admirable  one."  And  it  further  pointed 
out  that,  in  the  year  of  the  Reconstruction  excite- 
ment, in  1868,  the  Court  had  "'touched  the  lowest  point 
in  its  career ;  and  now  that  the  spirit  of  conservation 
has  begun  to  reign  again,  the  important  problem  of  the 
hour  is  to  bring  back  harmony  and  justice  into  the  affairs 
of  the  country",  that  the  Court  was  the  agency  best 
calculated  to  assist  in  the  work,  that  its  hands  must  be 
strengthened,  and  that  apparently  popular  respect  for 
the  judicial  function  had  begun  again  to  appear.  "As 
Congress  and  the  President  fell,  so  the  Court  arose  in 
regard  and  esteem.  The  balance  is  at  length  in  a  fair 
way  of  being  restored,  and  one  more  illustration  fur- 
nished of  the  inherent  excellence  of  the  system  of  checks 
and  balances  which  lies  at  the  root  of  American  politics. 
Thus  one  day  may  the  future  historian  of  America,  for 
the  instruction  of  generations  to  come,  carve  the  lessons 
of  the  recent  history  of  the  Judiciary."  Hoar's  nom- 
ination was  commended  on  all  sides  by  the  public  and 
the  press.  "His  distinguished  abilities  are  conceded 
and  his  elevation  to  the  Supreme  Bench  is  received  with 
profound  satisfaction  by  all,"  said  the  New  York  Times. 
"One  of  the  best  that  could  have  been  made,"  said 
Harper's  Weekly,  and  it  mentioned  his  "vigorous  in- 
dependence, soundness  of  judgment,  masculine  good 
sense  and  legal  learning."  ^    That  he  was  supremely 

1  Nation,  Dec.  2,  1869,  Jan.  6,  1870;  New  York  Times,  Dec.  16,  1869;  Harj>er*e 
WeeUif,  Jan.  1,  1870;  Amer.  Law  Rev,,  IV,  880.    See  also  Waehinffttm  Chronicle, 


THE  LEGAL  TENDER  CASES  225 

fitted  for  the  position  by  his  legal  qualifications,  all 
admitted.  He  was  fifty-three  years  of  age  and  at  the 
height  of  his  vigor ;  he  had  been  Judge  of  the  Mas- 
sachusetts Supreme  Court,  and  an  able  Attorney-Gen- 
eral of  the  United  States;  he  was  also  in  thorough 
sympathy  with  Grant's  policies.  But  in  the  Senate, 
the  nomination  met  with  hearty  opposition  from  many 
causes.  Some  Senators  believed  that  a  lawyer  from 
the  South,  particularly  Thomas  J.  Durant  of  Louisiana, 
should  have  been  appointed ;  others  were  disgruntled 
over  the  nominees  recommended  by  Hoar  for  Circuit 
Judges;  to  many  Senators,  Hoar's  brusque  manners 
had  given  great  offense ;  others  resented  his  opposition 
to  the  Johnson  impeachment ;  others  disliked  his  sup- 
port of  Civil  Service  Reform.^    He  was  supported  by 

Dec.  15,  1809,  Htymg  it  "will  generally  be  accepted  as  an  appropriate  selection, 
comparatively  young,  possessing  the  required  learning  and  ability." 

^  Harper's  Weeldy,  Jan.  1,  1870,  said  that  the  real  ground  of  objection  must  be 
his  ''hearty  contempt  of  the  system  that  makes  the  whole  civil  service  party  plun- 
der.'* On  Jan.  8,  it  said  that  the  Senate's  virtual  rejection  of  Hoar  was  reported 
by  the  New  York  Timee  to  be  due  to  a  "sense  of  the  affronts  Senators  and  Repre- 
sentatives have  received  at  his  hands.  ...  He  has  no  one  to  blame  for  his  dis- 
comfiture but  himself."  "This  means,"  said  the  Weekly,  "that  Mr.  Hoar  has  re- 
fused to  be  a  mere  party  tool."  The  Independent,  Feb.  10,  1870,  said :  "Nobody 
can  deny  that  the  Attorney-General  is  an  able  lawyer  and  a  genuine  radical.  The 
Senate  disliked  him  personally  and  looked  with  disfavor  upon  the  selection  of  a 
Northern  man  for  a  Southern  Circuit."  The  New  York  Herald,  Dec.  21,  1869, 
stated  that  the  Senate  contrasted  the  "poUshed  politeness  of  Evarts,  and  dignified 
but  courteous  bearing  of  Stiftibery  with  the  supercilious  contempt  of  Hoar  to  his 
superiors."  George  F.  Hoar  in  his  Atdobiography  oj  Seventy  Years  (1008),  said : 
"Judge  Hoar  strenuously  insisted  that  the  Judges  of  the  newly  created  Circuit 
Courts  of  the  United  States  should  be  made  up  of  the  best  lawyers,  without  Sen- 
atorial dictation.  President  Grant  acted  in  accordance  with  his  advice.  The 
constitution  of  the  Circuit  Court  gave  great  satisfaction  to  the  public.  But  lead- 
ing and  infiuential  Senators,  whose  advice  had  been  rejected  and  who  were  com- 
pelled, by  the  high  character  of  the  persons  nominated,  to  submit  and  did  not  ven- 
ture upon  a  controversy  with  the  President,  were  intensely  angry  with  the  Attorney- 
General.  The  result  was  that  when  he  was  nominated  by  the  President  for  the 
office  of  Associate  Justice  of  the  Supreme  Court  of  the  United  States,  he  was  re- 
jected by  the  Senate.  A  few  Senators  avowed,  as  a  pretext  for  their  action,  that 
there  was  no  Judge  on  the  Bench  from  the  South,  and  that  the  new  appointee  ought 
to  reside  in  the  Southern  Circuit.  But  these  gentlemen  all  voted  for  the  confir- 
mation of  Mr.  Justice  Bradley,  a  most  admirable  appointment,  to  whom  the  same 
objection  applied."  See  also  especially  Springfield  Weekly  Republican,  Dec.  20, 
1860»  Jan.  1, 1870,  giving  the  causes  of  Hoar's  rejection. 

VOL.  in  —  8 


226  THE  SUPREME   COURT 

Senator  Trumbull  but  opposed  by  Conkling,  Edmunds, 
Carpenter,  by  the  carpet-bag  Senators  from  the  South 
and  by  the  Democrats.  "In  the  whole  proceedings/' 
said  the  Nation^  "the  Democrats  alone  can  be  justified 
or  excused.  To  them.  Judge  Hoar  is  the  principal 
representative  of  a  system  they  believed  to  be  uncon- 
stitutional and  outrageous/' 

While  this  fight  was  pending  in  the  Senate,  the  Pres- 
ident was  given  an  opportunity  to  make  another  ap- 
pointment. Judge  Grier,  who,  in  his  seventy-sixth  year 
and  after  twenty-three  years*  service,  had  become  men- 
tally and  physically  enfeebled,  took  advantage  of  the 
recent  statute  increasing  the  Judges'  salaries  and  au- 
thorizing retirement  on  half  pay,  and  sent  in  his  resigna- 
tion on  December  15,  1869,  to  take  eflFect,  February  1, 
1870.  A  petition  was  at  once  signed  by  a  large  majority 
of  the  Senate  and  of  the  House  and  presented  to  the 
President,  asking  that  the  vacancy  be  filled  by  the  ap- 
pointment of  the  late  Secretary  of  War,  Edwin  M. 
Stanton  of  Pennsylvania.^  Grant,  while  reluctant  to 
make  this  nomination  and  while  desiring  to  appoint 
Judge  William  Strong  of  Pennsylvania,  saw  a  chance 
of  conciliating  the  Senate  with  regard  to  Hoar;  and 
accordingly,  on  Sunday,  December  19,  1869  (Stanton's 
fifty-fourth  birthday),  he  called  on  him,  offered  him  the 
position  and  sent  in  his  name,  the  next  day,  to  the 
Senate,  where  he  was  promptly  confirmed  by  a  vote  of 
forty-six  to  eleven.  The  appointment  was  received 
by  the  country  with  great  differences  of  opinion. 
Though  Stanton  had  been  an  able  lawyer,  his  tempera- 

^  Judge  Grier  had  suggested  to  Giant  that  Joseph  P.  Bradley  of  New  Jersey  be 
appointed  his  successor.  Independent^  Dec.  23, 1869.  The  Springfield  Republican 
as  early  as  Nov.  27,  1869,  had  urged  Stanton's  appointment,  and  it  said,  Dec.  26, 
that  "as  Gen.  Grant  never  got  on  well  with  Stanton  when  he  was  in  the  War  De- 
partment, and  had  some  pr^udice  to  conquer  in  order  to  bring  him  up  to  this 
appointment,  it  must  have  been  quite  a  gratifying  interview  to  the  old  war  horse 
o£  the  Anny  Department." 


THE  LEGAL  TENDER  CASES  827 

ment  was  such  as  to  make  him  a  doubtful  acquisition 
to  the  Bench;  for  he  was  arbitrary,  overbearing, 
masterful  and  utterly  lacking  in  judicial  poise.  Never- 
theless, the  Republicans  hailed  his  choice  with  delight, 
and  termed  it  "the  equivalent  of  a  Constitutional 
Amendment/'  The  Washington  Chronicle  "thrilled 
with  joy  "  and  said  that  no  statesman  had  a  firmer  hold 
on  the  affections  of  the  people.  The  Chicago  Repub- 
lican said  it  would  "give  general  satisfaction"  and  that 
he  "had  few  peers  at  the  Bar."  The  Springfield  Re- 
publican  said  that  "justice  is  his  strong  point."  The 
New  York  Times  spoke  of  the  "general  congratulations  " 
and  of  his  "sturdy  integrity,  intellectual  acumen  and 
force,  unswerving  patriotism,  high  legal  reputation, 
tireless  energy."  "It  is  a  recognition  of  his  illustrious 
service  to  his  country,  in  the  performance  of  which  he 
was  equalled  for  energy,  courage  and  genius  by  no  other 
statesman  or  hero  of  the  war.  .  .  .  The  peer  of  Bis- 
marck in  executive  force,  we  believe  that  ...  he  will 
attain  a  judicial  eminence  second  to  none  ever  achieved 
in  the  same  judicial  station.  God  bless  Edwin  M.  Stan- 
ton ! "  said  the  Independent 

The  Democratic  press  raged  at  the  appointment. 
The  New  York  World  said  that:  "His  enemies  (and 
no  one  ever  had  a  greater  number)  think  him  a  passion-^ 
ate,  violent  and  headstrong  man,  malignant,  despotic 
and  utterly  unscrupulous.  .  •  .  His  apologists  have 
never  denied  that  he  has  an  impetuous  temper  and  over- 
bearing manners.  .  .  .  There  has  never  been  any  dif- 
ference of  opinion  between  his  foes  and  his  partisans, 
respecting  the  general  type  and  structure  of  his  char- 
acter, which  is  as  far  removed  as  possible  from  dispas- 
sionate calnmess,  judicial  impartiality  and  reverence 
for  strict  law.  No  one  could  be  more  out  of  place  than 
such  a  hasty,  violent,  imperious  zealot  on  the  bench  of 


228  THE  SUPREME  COURT 

the  Supreme  Court/*  The  New  York  Herald  stated, 
more  fairly,  that  while  he  was  fully  qualified  as  a  lawyer 
for  the  position  of  Judge,  and  while  he  had  been  honest, 
earnest,  active,  firm,  resolute,  decisive  and  efi^cient  in 
the  War  OflBce,  "  the  man  of  all  men  for  the  part  he  had 
to  play,  ...  it  may  be  said  that  he  was  rough,  im- 
perious, despotic,  cruel  and  offensive  in  many  things/' 
Of  the  independent  papers,  the  Nation  was  inclined 
to  be  hopeful.  "There  are  many  signs,'*  it  said,  "that 
the  Supreme  Court  is  recovering  from  the  temporary 
loss  of  influence  and  dignity  inflicted  on  it  by  the  Dred 
Scott  decision  and  the  events  of  the  war.  The  general 
excellence  of  the  President's  appointments  to  the  new 
Circuit  Judgeships,  capped  by  the  bestowal  of  the 
vacant  seats  in  the  Supreme  Court  itself  on  Judge  Hoar 
and  Mr.  Stanton,  and  the  increase  of  salaries  which  is 
now  pending  in  Congress,  are  all  signs  of  a  healthy  re- 
action in  the  public  mind  as  to  the  inestimable  value  of 
an  upright,  independent  and  honored  Judiciary." 
Whatever  Stanton 's  fitness  may  or  may  not  have  been, 
his  sudden  death  from  heart  trouble,  on  December  24, 
four  days  after  his  nomination,  put  an  end  to  the  dis- 
cussion. "In  him,  the  bench  of  the  Supreme  Court 
loses  a  Judge  of  large  experience  and  learning,  of  perfect 
integrity  and  of  unflinching  courage  in  the  discharge 
of  duty,"  said  the  American  Law  Review.  "And  at  this 
time,  when  there  is  so  manifest  a  disposition  in  many  of 
our  public  men  to  undervalue  the  duties  and  to  encroach 
upon  the  province  of  the  Judiciary,  and  to  throw  aside 
men,  confessedly  fitted  by  character,  learning,  and  ex- 
perience to  adorn  the  Bench,  for  trivial  and  unworthy 
causes,  we  deem  that  the  country  has  suffered  an  ir- 
reparable loss."  ^ 

1  Nation,  Dec.  23, 1869 ;  Amer.  Law  Rev.  (1870),  IV,  894 ;  aee  Chicago  Republican, 
Dec.  22,  25,  1809;  Independent,  Dec.  28,  SO,  1809;  New  York  Timee,  Dec.  21.  25, 


THE  LEGAL  TENDER  CASES  229 

As  the  Senate  had  not  confirmed  Hoar,  and  as,  after 
January  8,  1870,  it  was  certain  that  it  would  not  do  so, 
the  President  had  still  two  appointments  to  make.^ 
For  the  Grier  vacancy,  Benjamin  H.  Brewster  of 
Pennsylvania,  and  Judge  George  P.  Fisher  of  Delaware 
were  urged ;  and  in  place  of  Hoar,  Thomas  J.  Durant 
of  Louisiana  and  Senator  Charles  D.  Drake  of  Mis- 
souri. "What  the  country  wants  is  purity,-  honesty, 
ability  and  fearless  radicalism,"  said  the  Independent. 
"The  country  distrusts  lawyers,  when  it  comes  to  ques- 
tions of  loyalty  and  human  rights.  What  we  want  now 
is  two  or  three  sincere  and  obstinate  radicals  on  the 
Bench  .  .  .  with  a  sincere,  profound  belief  in  the  equal- 
ity of  human  rights."  *  Very  early  in  January,  the 
President  had  informed  visitors  that  he  had  decided  to 
appoint  Judge  Strong  to  the  Grier  vacancy ;  •    but  the 

27,  1869,  stating  that :  "The  commiasion  of  Mr.  Stanton  as  Associate  Justice  had 
not  been  signed  at  the  time  of  his  death,  but  in  the  course  of  the  day  the  President 
appended  the  signature  and  sent  the  paper  to  the  widow  as  a  mark  of  respect." 
Washington  Chronide,  Dec.  StS,  1869 ;  New  York  Herald,  Dec.  25, 1869 ;  ^010  York 
World,  Dec.  22, 1869.  On  Dec.  24,  the  World  published  an  editorial  containing  in- 
vective against  Stanton  of  the  most  extreme  nature ;  and  after  his  death,  it  said» 
Dec.  25 :  "  When  Mr.  Stanton*s  character  is  viewed  in  its  true  light,  he  will  be  re- 
garded as  the  most  faithful  personal  embodiment  of  the  passionate  and  vindic- 
tive spirit  of  the  period  in  which  he  acted  ;'*  see  Springfield  Weekly  RepMiean  stat- 
ing, Jan.  1,  1870,  that  the  WorUTs  rancor  against  Stanton  was  due  to  the  latter's 
refusal  to  give  a  pass,  in  1864,  to  a  World  correspondent,  to  whom  he  said:  "No 
favor  can  be  given  here  to  a  treasonable  newspaper." 

^See  New  York  Times,  Jan.  8,  10,  1870;  Ebenezer  Rochcood  Hoar  (1911),  by 
Moorfield  Storey  and  Edward  W.  Emerson.  James  Russell  Lowell  wrote  to  Hoar : 
"Don't  let  your  name  be  withdrawn.  Let  the  responsibility  lie  with  the  knaves 
who  hate  you  for  your  impregnability  and  haven't  the  courage  to  say  so."  Hoar's 
nomination  was  finally  defeated  by  the  Senate,  Feb.  8, 1870,  by  a  vote  of  24  to  88. 

'  The  Nation  said,  Feb.  16, 1870 :  "  We  are  informed  that  it  was  in  contemplation 
to  urge  Mr.  Durant  of  New  Orleans  for  the  Judgeship  which  Mr.  Hoar  did  not  get. 
Mr.  Durant  is,  and  was  before  the  war,  a  leading  member  of  the  Louisiana  Bar, 
was  a  staunch  Union  man  during  the  war  and  a  man  of  the  highest  character,  both 
professional  and  personal.  Hb  appointment  would  supply  what  is  greatly  needed 
—  a  Civilian  on  the  Supreme  Bench.  The  want  of  any  Judge  versed  in  Civil  Law 
is  often  severely  felt  in  appeals  from  Louisiana,  Texas  and  California." 

*  Independent,  Jan.  6,  Feb.  10, 1870;  New  York  Times,  Jan.  10, 1870;  New  York 
Herald,  Jan.  20,  1870,  Nation,  Jan.  6,  1870.  The  Springfield  Weekly  Republican, 
Jan.  15,  1870,  stated  that  Strong  had  been  definitely  selected  and  that  he  had  long 
been  "a  prominent  and  honored  citissen  .  .  .  and  will  be  a  real  addition  to  the 
working  ability  and  legal  character  of  the  Court." 


230  THE  SUPREME  COURT 

hope  was  generally  expressed  that  he  would  not  repeat 
what  the  Nation  termed  "an  act  of  very  doubtful 
propriety"  and  "a  dangerous  precedent*',  when  the 
President  had  nominated  Stanton  to  the  Supreme 
Bench  "long  before  any  vacancy  existed,  the  immediate 
result  of  which  was  the  curious  spectacle  of  a  Judge 
dead  and  buried  in  state  while  his  predecessor  sits  on 
the  Bench  and  goes  to  the  funeral/' 

During  all  this  time,  when  the  question  of  filling  the 
vacancies  was  pending,  the  Court  had  been  withholding 
making  public  a  decision  at  which  it  had  arrived ;  for 
on  November  27, 1869,  four  Judges  had  agreed  in  hold- 
ing the  Legal  Tender  Act  unconstitutional  as  applied 
to  contracts  made  before  its  passage,  and  Judge  Grier, 
who  had  at  first  declared  himself  in  favor  of  the  Act, 
had  finally  changed  his  view  and  agreed  with  the  ma- 
jority. As  three  Judges  dissented,  the  rendering  of  the 
opinion  was  delayed  until  the  varying  views  could  be 
definitely  reconciled.  In  the  meanwhile,  however,  the 
Court,  on  December  13,  1869,  decided  the  important 
case  of  Veazie  Bank  v.  Fenno^  8  Wall.  533,  argued  for 
the  State  banks  by  Reverdy  Johnson  and  Caleb  Cush- 
ing  and  by  Attorney-General  Hoar  for  the  Govern- 
ment. In  this  case,  the  power  of  Congress  to  restrain 
by  taxation  the  circulation  of  State  bank  notes  as  cur- 
rency was  upheld,  as  an  appropriate  means  under  the 
Constitution  of  providing  a  National  currency  for  the 
country.  Chief  Justice  Chase  held  the  tax  was  not  a 
direct  tax ;  and  stated  that  without  this  power  of  tax- 
ation, the  Government's  "attempts  to  secure  a  sound 
and  uniform  currency  for  the  country  must  be  futile.  '* 
That  the  tax  was  so  excessive  as  to  indicate  a  purpose 
on  the  part  of  Congress  to  destroy  the  franchise  of  the 
State  bank,  he  held  was  a  matter  which  the  Court  could 
not  consider.     **The  power  to  tax  may  be  exercised 


THE  LEGAL  TENDER  CASES  231 

oppressively  upon  persons,  but  the  responsibility  of  the 
Legislature  is  not  to  the  Courts,  but  to  the  people,  by 
whom  its  members  are  elected/*  ^  From  the  broad 
construction  given  to  the  "necessary  and  proper** 
clause  of  the  Constitution  by  the  Chief  Justice  in  this 
case,  the  country  was  led  to  believe  that  he  would  render 
a  similar  favorable  decision  in  the  Legal  Tender  Case 
then  pending.^  No  definite  knowledge,  however,  as  to 
the  actual  decision  at  which  the  Court  had  arrived  in 
the  previous  November  leaked  out ;  and  on  January  4, 
1870,  the  New  York  Times  stated  that :  "From  all  that 
can  be  learned  of  the  matter,  it  is  reasonably  certain 
that  no  decision  will  be  reached  during  the  present 
Term.  No  consideration  has  yet  been  had  in  the  case 
by  the  Court,  and  inasmuch  as  the  Court  will  be  reor- 
ganized by  the  addition  of  two  new  members,  it  is  alto- 
gether probable  that  the  cases  will  be  ordered  to  be  re- 
argued before  a  decision  is  made.  **  On  January  21,  the 
New  York  World  stated  that  in  the  three  important 
litigations  arising  out  of  the  war,  the  Legal  Tender  Case, 
the  Cotton  Tax  Case '  and  the  State  Test  Oath  Case,  the 

^  James  M.  Beck  in  NvUificaiion  by  IndirecHony  Harv,  Law  Rev,  (1911),  XXIII, 
said  that  Vecatie  y.  Fenno  first  announced  the  doctrine  "  that  the  Judidary  is  with- 
out power  to  prevent  the  nullification  of  the  rights  of  the  States  by  the  exercise  of 
Federal  powers  for  unconstitutional  purposes."  See  also  McCray  v.  United  States 
(1904),  195  U.  S.  27;  Tke  Extension  of  Federal  Control  through  the  Regulaiion  cf 
the  Mails,  by  lindsay  Rogers,  Harv.  Lavo  Reo.  (191S),  XXVII ;  PotMr  of  Regula- 
tion Vested  in  Congress,  by  Max  Pam,  ibid.  (1910),  XXIV. 

'  The  Cincinnati  Daily  Chronide,  Dec.  15,  1869,  stated  that  the  decision  "must 
settle  the  validity  of  the  Legal  Tender  Law."  The  New  York  World,  Dec.  Id,  1869, 
said  as  to  this  decision  that  "there  was  a  manifest  indecorum  in  Judge  Chase's 
taking  part,  as  he  was  the  real  author  of  the  scheme  for  taxing  State  banks  out  of 
existence" ;  and  that  his  opinion  "was  an  elaborate  defense  of  his  own  policy  when 
he  was  Secretary  of  the  Treasury.  He  is  the  father  oi  the  present  system  of  Na- 
tional Banks.  He  was  the  instigator  of  the  tax  whose  manifest  design  and  real 
effect  was  to  cripple  and  crush  the  rival  State  institutions",  and  that  his  sense  of 
propriety  should  have  led  him  not  to  sit. 

'  This  case^  Farrington  v.  Saunders,  involving  the  question  whether  the  Cotton 
Tax  was  a  "direct  tax"  had  been  argued,  Dec.  8,  9, 1869,  by  Philip  Phillips,  Albert 
Pike,  R.  W.  Johnson,  W.  L.  Sharkey,  James  Hughes,  John  A.  Campbell,  Benjamin 
R.  Curtis  and  Robertson  Topp  against  Attorney-General  £.  R.  Hoar.  See  New  York 
Herald,  Dec.  9,  1869.    It  was  not  decided  until  1871,  when  by  an  evenly  divided 


232  THE  SUPREME  COURT 

opinions  of  the  Court  would  probably  be  adverse. 
"Great  anxiety/'  it  said,  "is  felt  in  reference  to  these 
decisions;  and  the  expectation  that  the  decision  ad- 
verse to  these  Acts  would  irritate  the  Radicals  in  Con- 
gress has  made  some  go  so  far  as  to  impute  timidity,  as 
one  of  the  reasons  that  there  is  not  a  full  Court.  The 
idea  is  thus  obtaining  currency  that  the  Court  will  not 
have  the  nerve  to  perform  their  duty  in  these  cases,  and 
that  these  important  cases  will  be  suffered  to  sleep  as 
they  have  done  for  so  many  months/'  The  want  of  jus- 
tification for  this  charge  of  lack  of  nerve  on  the  part  of 
the  Court  was  seen,  when  within  two  weeks,  on  Feb- 
ruary 1,  1870,  the  Court  rendered  a  decision  in  the  Test 
Oath  Case  upholding  by  a  four  to  four  division  the  va- 
lidity of  the  Missouri  statute.^  On  Saturday,  January 
29,  1870,  the  Court  had  met  in  conference  and  adopted 
the  form  of  its  final  opinion  in  the  Legal  Tender  Case ; 
but  that  the  speculative  surmises  of  the  press  as  to  its 
action  in  this  latter  case  were  far  from  accurate  may  be 
seen  from  the  New  York  Tribune^ s  statement  of  Feb- 
ruary 1,  that  a  consultation  had  been  held  and  that 
"  there  is  ground  for  believing  that  the  decision  will  not 
go  into  the  question  of  the  constitutionality  of  the  law. 

Court,  the  decision  of  the  lower  Court  upholding  the  validity  of  the  tax  was  affirmed ; 
it  is  not  reported  in  Wallace  ReporU.    See  e7th  Cong.,  2d  Seaa,,  March  IS,  1922. 

^Tfais  case,  Blair  v.  Thompson  A  Ridgdy  (not  reported  in  Wallace  Reports), 
had  been  begun  in  1866  to  test  the  constitutionality  of  a  Missouri  statute  depriv- 
ing all  persons  of  a  right  to  vote  who  did  not  take  an  oath  that  they  had  not  par- 
ticipated in  hostilities  against  the  Nation  or  the  States.  See  New  York  World, 
Jan.  9,  21,  Feb.  2,  1870.  The  Independent  said,  Feb.  10,  1870:  "Mr.  Chase  gave 
his  vote  in  favor  of  the  constitutionality  of  the  oath  and  saved  it  from  overthrow. 
This  shows  two  things,  first  that  he  is  not  a  modem  Democrat ;  and  second  that  he 
is  not  seeking  a  nomination  to  the  Presidency  from  the  Democratic  party."  See 
also  New  York  Timee,  Feb.  1,  1870;  New  York  Tribune,  Feb.  1,  1870,  for  a  full  re- 
port  of  the  case.  It  was  argued  by  Montgomery  Blair  against  Senator  Drake. 
The  Judges  divided  —  Nelson,  Grier,  Clifford  and  Field  against  the  statute.  Chase, 
Swayne,  Davis  and  Miller  for  it ;  see  BoHon  Daily  AdwrHeer,  Feb.  1,  1870.  On 
the  same  day,  the  Court  by  another  four  to  four  decbion  (not  reported)  upheld  the 
validity  of  the  Act  of  Congress  forbidding  suits  against  United  States  officers  who 
took  or  destroyed  property  in  the  South  as  a  war  measure.  See  especially  Spring^ 
field  Republican,  Feb.  2,  4,  1870;  Boston  DaUy  Advertiser^  Feb.  2,  1870. 


THE  LEGAL  TENDER  CASES  28S 

but  will  decide  that  all  contracts  made  previous  to  the 
passage  of  the  act  contemplated  payment  in  gold. "  ^ 
The  Court  had  intended  that  its  opinion  should  be 
delivered  on  Monday »  January  31,  when  Judge  Grier 
would  still  be  a  member  of  the  Court  and  would  be  one 
of  the  five  Judges  constituting  the  majority ;  but  out 
of  deference  to  the  minority,  who  wished  for  further 
time  to  prepare  their  dissenting  opinions,  the  matter 
was  postponed  for  a  week.*  On  February  7,  Chief 
Justice  Chase  announced  the  opinion  of  the  Court, 
which  was  concurred  in  by  Judges  Nelson,  Clifford  and 
Field,  with  Judges  Miller,  Swayne  and  Davis  dissenting, 
—  Hepburn  v.  Griswoldy  8  Wall.  603. 

On  the  underlying  principles  of  law,  both  the  ma- 
jority and  the  minority  agreed  in  accepting  Marshall 's 
statement  of  the  implied  powers  of  Congress  as  set 
forth  in  McCuUoch  v.  Maryland.  The  Chief  Justice, 
however,  held  that  the  attempt  to  impart  the  quality  of 
legal  tender  to  the  Government  paper  currency  was  not 
**  an  appropriate  and  plainly  adapted  means  for  carrying 
on  war" ;  and  that  the  argument  by  which  the  legality 
of  the  statute  was  defended  carried  the  doctrine  of 
implied  powers  too  far,  and  '"asserts  that  whatever  in 
any  degree  promotes  an  end  within  the  scope  of  a  gen- 
eral power,  whether,  in  the  correct  sense  of  the  word, 
appropriate  or  not,  may  be  done  in  the  exercise  of  an 
implied  power.  .  .  .  Undoubtedly,  among  means 
appropriate,  plainly  adapted,  really  calculated,  the 
Legislature  has  unrestricted  choice."  But  it  was  for 
the  Court  to  determine  whether  the  means  adopted 
came  within  that  category.  He  held,  moreover,  that 
""a  law  not  made  in  pursuance  of  an  express  power, 

^  New  York  Tribune,  Feb.  1, 4, 1870 ;  aee  also  B4>aUm  Journal,  Feb.  2, 1870,  which 
nid  that  the  opinipn  "will  carefully  avoid  the  question  of  the  ooiutitutioiiality  of 
the  Act  itself;"  Independent,  Dec.  23, 1869. 

*  See  statement  of  Chief  Justice  Chase  in  Knox  v.  Lee,  12  Wall.  457. 


234  THE  SUPREME   COURT 

which  necessarily  and  in  its  direct  operation  impairs  the 
obligation  of  contracts,  is  inconsistent  with  the  spirit 
of  the  Constitution/'  And  finally,  referring  indirectly 
to  his  own  support  of  this  law  when  Secretary  of  the 
Treasury,  he  said :  "It  is  not  surprising  that  amid  the 
tumult  of  the  late  civil  war,  and  under  the  influence  of 
apprehensions  for  the  safety  of  the  Republic  almost 
universal,  diflFerent  views,  never  before  entertained  by 
American  statesmen  or  jurists,  were  adopted  by  many. 
The  time  was  not  favorable  to  considerate  reflection 
upon  the  constitutional  limits  of  Legislative  or  Execu- 
tive authority.  If  power  was  assumed  from  patriotic 
motives,  the  assumption  found  ready  justification  in 
patriotic  hearts.  Many  who  doubted,  yielded  their 
doubts ;  many  who  did  not  doubt  were  silent.  .  .  .  Not 
a  few  who  then  insisted  upon  its  necessity,  or  acquiesced 
in  that  view,  have,  since  the  return  of  peace,  and  under 
the  influence  of  the  calmer  time,  reconsidered  their 
conclusions."  Accordingly,  so  far  as  the  Legal  Tender 
Act  applied  to  contracts  made  before  its  passage  (which 
was  the  only  question  actually  involved  in  this  case), 
the  Court  held  the  Act  unconstitutional.  The  reason- 
ing, however,  contained  in  the  Chief  Justice's  opinion 
was  equally  applicable  to  cases  of  contracts  executed 
after  the  passage  of  the  law  and  would  render  it  equally 
invalid  as  to  them.  The  minority,  after  reviewing  the 
conditions  of  the  war  when  the  Act  was  passed,  held  that 
"this  law  was  a  necessity,  in  the  most  stringent  sense 
in  which  that  word  can  be  used" ;  and  they  described 
the  war  in  terms  which  have  a  very  modem  sound,  as 
"a  war  which,  if  we  take  into  account  the  increased 
capacity  for  destruction  introduced  by  modem  science 
and  the  corresponding  increase  of  its  cost,  brought  into 
operation  powers  of  belligerency,  more  potent  and  more 
expensive  than  any  that  the  world  has  ever  known." 


THE  LEGAL  TENDER  CASES  235 

Apart  from  the  question  of  impairing  obligation  of 
contract,  the  real  diflFerence  between  the  majority  and 
the  minority  was  simply  one  of  fact,  viz.  whether 
Congress  might,  within  the  bounds  of  reason,  have 
considered  the  issue  of  legal  currency  to  be  "neces- 
sary" for  the  carrying  on  of  the  war. 

At  first,  the  decision  was  not  regarded  as  of  great 
consequence,  as  its  effect  was  supposed  to  be  confined 
merely  to  cases  of  contracts  made  before  the  war, 
"The  decision  is  not  unexpected,"  said  the  New  York 
Times 9  "and  in  no  manner  involves  the  constitution- 
ality of  the  law  itself.  .  .  •  There  will  be  hardship, 
undoubtedly,  and  in  some  instances  injustice ;  but  the 
judgment  of  the  Court  rests  upon  an  intelligible,  if  not 
an  agreeable  or  entirely  defensible  principle,  the  pro- 
mulgation of  which  constitutes  another  reason  for  the 
restoration  with  all  convenient  speed  of  specie  pay- 
ments." 1  "This  decision  is  of  much  less  consequence 
than  it  would  have  been  if  it  had  been  rendered  five 
years  sooner,"  said  the  Independent.  "In  1870,  it  is 
not  a  means  of  protection  or  redress,  but  only  a  message 
of  condolence."  "It  would  have  been  of  great  im- 
portance had  it  been  *  more  timely,  * "  said  the  New  York 
World.  The  Washington  Chronicle  said  that  while  the 
decision  was  "an  insidious  assault  upon  the  great  meas- 
ure which  saved  the  country  during  the  rebellion",  it 
was  not  likely  to  work  any  serious  injury.  "The  confi- 
dence in  the  greenbacks  is  too  great  to  be  shaken  by 
judicial  decision."    The  New  York  Herald,  which  also 

^  The  New  York  Timet,  Feb.  8, 1870,  said :  "There  was  a  great  deal  of  perturba- 
tion and  much  confusion  at  the  Capitol  today  at  the  announcement.  .  .  .  The 
Court-room  was  crowded;  but  little  satisfaction  was  obtained  in  listening  to  the 
reading  of  the  decision  ...  by  the  Chief  Justice,  as  he  was  almost  wholly  inaudi- 
ble;" see  also  Washington  Chronide,  Feb.  12, 1870;  Independent,  Feb.  10, 17, 1870; 
New  York  Herald,  Feb.  8,  0,  16,  22, 1870;  on  Feb.  24,  it  mA :  "The  decision  does 
not  foreshadow  a  decision  denying  the  validity  of  the  act.  .  .  .  There  is  not  a 
vestige  of  probability  that  the  Court  will  go  a  step  further." 


236  THE  SUPREME   COURT 

favored  the  greenbacks  and  opposed  the  National  banks, 
at  first  took  this  restricted  view  of  the  opinion  and  said 
that  the  Court  had  avoided  holding  the  Legal  Tender 
Act  unconstitutional  as  to  present  contracts  —  a  de- 
cision which  would  have  "involved  the  whole  country 
in  financial  chaos  and  the  Government  perhaps  in  bank- 
ruptcy and  repudiation.  .  .  .  We  have  no  fears  that 
the  Supreme  Court  will  risk,  for  a  long  time  to  come,  a 
decision  against  our  greenback  currency  as  legal  tender." 
And  it  stated  that  with  the  new  members  on  the  Court 
it  expected  a  favorable  decision.  "The  Court,  even 
when  most  strongly  seasoned  with  State-Rights,  has 
carefully  avoided  any  disturbing  collision  with  Con- 
gress. '*  The  Nation  said,  presenting  what  was  probably 
the  view  held  by  most  thoughtful  men :  "There  is  little 
question,  whatever  be  the  objections  to  the  decision  on 
general  grounds,  that  it  will  accelerate  the  return  of 
specie  payments  and  give  a  useful  fillip  to  the  moral 
sense  of  the  country,  and  especially  of  the  knavish  por- 
tion of  the  public.  .  .  .  Legal  tenders  are  one  thing ; 
depreciated  legal  tenders  are  another  thing;  and  no 
Court  can  be  expected  to  declare  cheating  lawful,  unless 
it  is  plainly  and  unmistakably  obliged  to  do  so  by 
the  recognized  decrees  of  the  sovereign  authority.  •  .  . 
The  Court  can  very  well  say,  and  does  say,  that  it  knows 
nothing  of  legislative  necessity,  but  that  it  does  know 
that  nothing  but  express  direction  would  justify  it  in 
declaring  lawful  and  justifiable  the  evasion  of  a  clear 
moral  obligation."  As  to  the  opinion  of  the  dissenting 
Judges,  it  said :  "The  strong  point  of  Judge  Miller's 
argument  is,  as  might  be  expected,  what  is  the  Chief 
Justice's  weakest  —  the  impropriety  of  taking  from 
Congress  and  committing  to  a  Court  of  Justice  a  task 
so  plainly  legislative  in  its  nature  as  the  decision  what 
means  are  necessary  and  proper  to  the  performance  of 


THE  LEGAL  TENDER  CASES  237 

a  duty,  so  complex,  so  delicate  and  so  full  of  unforeseen 
contingencies  ...  as  the  government  of  a  great  Na- 
tion during  a  great  war,  even  within  the  limited  sphere 
prescribed  by  our  written  Constitution.  .  .  .  And  yet 
if  the  interpretation  of  a  written  Constitution  is  not 
committed  to  Judges,  what  use  is  it  ?  If  the  majority 
can  do  whatever  they  choose  to  declare  constitutional, 
what  better  is  it  than  the  revocable  charters  which 
absolute  sovereigns  in  Europe  amused  themselves  by 
granting,  for  some  years  after  1816?"^ 

The  views  of  the  other  side  were  presented  by 
Harper ^8  Weekly ^ which  said  that:  "It  is  dangerous  to 
deprive  ourselves  of  an  essential  means  of  warfare  and 
defense  on  such  delusive  grounds.  It  will  soon  appear 
that  the  Legal  Tender  Act  cannot  safely  be  dispensed 
with.  Its  constitutionality  is  clear,  and  it  should  re- 
main with  Congress  to  decide  when  it  shall  be  inoper- 
ative. The  Court  has  overstepped  the  just  line  of  its 
authority,  and  attempted  to  restrict  Congress  in  this 
matter,  when  the  framers  of  the  Constitution  decided 
to  leave  them  free  of  such  restriction.*'  The  New  York 
Times  stated  that:  "The  effect  of  the  decision,  if 
allowed  to  stand,  upon  the  future  of  the  country  if  it 
shall  imfortunately  be  involved  in  war,  will  constitute 
its  worst  feature.  It  strips  the  Nation  of  one  of  its 
means  of  warfare  and  defense." 

As  soon  as  it  became  evident  that,  though  the  case 
before  the  Court  involved  only  the  effect  of  the  Act 
upon  contracts  made  before  its  passage,  the  reasoning 
of  the  majority  opinion  was  such  as  to  make  it  uncon- 
stitutional both  as  to  contracts  entered  into  after,  as 
well  as  before,  a  strong  movement  arose  in  the  com- 
munity to  urge  the  Court  to  grant  a  rehearing,  or  to 

^  NaHon,  Feb.  10, 17, 1870;  Harper's  Weekly,  March  19,  April  16, 1870;  Spring- 
fiM  Weekly  RepMican,  Feb.  11, 18, 1870;  New  York  Times,  Feb.  12,  March  8, 1870. 


238  THE  SUPREME  COURT 

review  the  whole  question  on  argument  of  other  cases 
pending  on  the  docket.^  Those  who  believed  the  de- 
cision to  be  disastrous  not  only  in  its  financial,  but  in 
its  governmental  effect,  were  encouraged  in  this  move- 
ment by  the  fact  that  at  last  the  two  long-pending 
vacancies  in  the  Court  had  been  filled  and  the  appoint- 
ees confirmed.  For  on  February  7,  on  the  same  day 
and  at  the  very  time  when  Chief  Justice  Chase  was 
reading  his  opinion  in  the  Legal  Tender  Casey  President 
Grant  sent  in  to  the  Senate  the  names  of  William  Strong 
of  Pennsylvania  to  fill  Grier's  place,  and  of  Joseph  P. 
Bradley  of  New  Jersey  to  fill  the  new  Judgeship  for 
which  Hoar's  name  had  already  been  rejected.*  The 
legal  qualifications  of  both  were  eminent;  and  while 
they  were  believed  to  favor  the  necessity  of  a  strong 
National  Government,  both  were  entirely  free  from 
political  entanglements,  or  suspicion  of  political  ac- 
tivity or  ambition.  Strong  was  sixty-two  years  of  age, 
and  had  been  for  eleven  years  a  Judge  of  the  Supreme 
Court  of  Pennsylvania.  Bradley  was  fifty-seven  years 
of  age;  he  had  been  highly  prominent  at  the  Bar  of 
New  Jersey,  which  regardless  of  party  had  urged  his 
appointment,  and  though  a  Republican,  he  had  been 
earnestly  recommended  to  the  President,  in  the  previous 
December,  by  a  Democratic  Judge,  Grier.' 

^  The  Nation^  March  24,  1870,  said  that  the  scheme  for  reversing  the  decision 
grew  out  of  the  notorious  dislike  of  the  Senators  for  Chief  Justice  Chase  and  out 
of  e£forts  of  moneyed  corporations.  "So  far  as  the  public  is  concerned,  there  has 
not  been  a  breath  of  popular  discontent  to  justify  any  political  movement;  and 
yet  grave  men  have  doubted  the  result ;  Senators  have  fully  expressed  their  opin- 
ion that  the  decision  must  be  reversed;  Congressmen  have  furiously  denounced 
it  as  rivalling  the  Dred  Scott  decision  in  bad  preeminence." 

'  See  Am0r,  Law  Rev.,  IV,  894,  saying  that  Hoar*s  rejection  was  a  scandal,  and 
that  the  reasons  given  by  the  Senate  as  to  the  tartness  and  acerbity  of  Hoar's  man- 
ners were  puerile  and  trivial. 

It  may  be  noted  that  Bradley  had  a  middle  initial  "P",  but  no  middle  name. 

'The  New  York  Tribune,  Feb.  9,  1870,  said:  "General  Grant  has  nominated 
very  good  lawyers  for  the  Supreme  Court,  but  none  truer  or  fitter  than  Bradley" ; 
■ee  also  New  York  Times,  Feb.  8, 1870. 


THE  LEGAL  TENDER  CASES  239 

The  coincidence  that  the  appointments  were  made  on 
the  day  of  the  rendering  of  the  adverse  Legal  Tender 
decision  soon  gave  rise  to  a  story,  which  later  had  much 
currency,  that  "Grant  packed  the  Court"  for  the  pur- 
pose of  obtaining  a  reversal  of  the  decision.  The  charge 
has  been  conclusively  answered  many  times,  but  still 
occasionally  crops  out  in  attacks  on  the  Court.^  The 
facts  themselves  disprove  the  accusation.  Both  Judges 
were  nominated  on  recommendation  of  Hoar,  who  later 
formally  stated  that  their  views  on  the  Legal  Tender 
issue  had  nothing  to  do  with  his  recommendation. 
Strong's  appointment  had  been  decided  on,  fully  a 
month  before  February  7;  and  Bradley's  had  been 
urged  on  the  President  and  favorably  considered,  be- 
fore Hoar's  own  appointment  in  the  previous  Decem- 
ber.* The  President  himself  formally  stated  that  he 
had  no  advance  knowledge  as  to  the  decision  of  the 
Court,  and  members  of  his  cabinet  later  stated  the  same 
thing.  The  newspapers  of  the  time  clearly  show  that 
there  was  no  leak  as  to  the  decision,  for  their  published 
forecasts  were  inaccurate.'  Since  practically  every 
State  Court  (except  Kentucky)  and  every  prominent 
Republican  lawyer  held  the  view  that  the  Legal  Tender 
Act  was  constitutional  it  would  have  been  impossible 
for  the  President  to  find  any  State  Judge  or  any  lawyer 

^  See  Nation,  April  7, 1870,  March  7, 1872.  In  its  issue,  April  11, 1872,  it  stated 
that  it  considered  that  Hoar  (the  Ex-Attomey-6eneral)  had  fully  answered  the 
charges ;  Und,,  April  6, 1872,  Nov.  9, 1876.  See  especially  for  full  statement.  The 
Charge  Cff  Packing  the  Court  against  President  Orant  and  Attorney-General  Hoar 
(1895),  by  George  F.  Hoar;  see  also  Hoar's  speech,  April  1,  7, 1874.  ^Sd  Cong,, 
1st  Sese. 

'  The  New  York  Herald,  Dec.  16, 1869,  said  that  Strong's  name  was  being  consid- 
ered for  Grier's  place ;  see  also  New  York  Tribune,  Feb.  7,  1870 ;  Neio  York  World, 
Feb.  15,  1870,  saying  that  Bradl^  was  Grant's  original  choice  before  he  appointed 
Hoar. 

'  See  Washington  correspondent  of  Boston  Daily  Advertiser,  writing  Feb.  6,  1870. 
That  at  least  one  prominent  statesman,  however,  had  advance  knowledge  is  seen 
from  (jeorge  S.  Boutwell's  statement  in  his  Reminiscences  of  Sixty  Years  (1902), 
rV,  209,  that  Chase  told  him  of  the  Court's  conclusion  "two  weeks  in  advance  of 
the  delivery  of  the  opinion." 


240  THE  SUPREME  COURT 

of  his  own  party  who  differed  from  Strong  and  Bradley 
in  the  view  which  they  later  expressed  on  the  Supreme 
Bench.  Moreover,  if  Grant  had  desired  to  "pack  the 
Court**,  it  would  have  been  far  easier  to  do  so  by  ap- 
pointing some  Judge  more  acceptable  to  the  Radicals 
than  the  conservative  Strong,  and  also  by  appointing 
a  carpet-bag  Judge  from  the  South  instead  of  Bradley ; 
for  it  was  known  at  the  time  of  the  appointments  that 
Strong  was  not  popular,  and  that  Bradley's  confirmation 
by  the  Senate  would  be  very  doubtful,  o.wing  to  the 
prevalent  sentiment  that  at  least  one  vacancy  should 
be  filled  by  a  Southern  lawyer.  *  *  Bradley 's  nomination 
is  a  surprise,"  said  the  New  York  Tribune* s  Washington 
correspondent,  "and  the  conmients  of  Senators  make 
the  opinion  general  that  both  are  looked  upon  with  dis- 
favor. In  regard  to  Judge  Strong,  the  time  of  his  nom- 
ination is  very  inopportune,  on  account  of  the  decision 
of  the  Supreme  Court  just  rendered  on  the  Legal  Tender 
Cases.  That  decision  has  stirred  up  the  more  radical 
members  of  the  Republican  party  in  Congress  and  es- 
pecially the  Senate.  .  .  .  Judge  Strong  they  think  a 
man  as  conservative  as  either  Chase  or  Field.  .  .  . 
Bradley  lacks  a  National  reputation";  and  the  New 
York  Herald  said  that  "the  Senate  vigorously  inveigh 
against  Bradley.  The  carpet-bag  Senators  are  par- 
ticularly ferocious  on  the  appointment  of  Bradley  .  .  . 
and  demand  to  have  a  man  from  their  own  section. 
A  pure  Southerner  is  their  ultimatum.  Bradley,  though 
personally  acceptable  to  every  Republican  Senator, 
notwithstanding  his  conservative  record,  carries  with 
him  the  same  objection  as  Hoar  as  to  locality."  There 
was  "universal  feeling  of  surprise"  at  Bradley's  ap- 
pointment and  "Northern  and  Southern  Senators  have 
strongly  urged  the  President  to  withdraw  it,"  said  the 
New  York  World.    While  Strong  was  finally  confirmed 


THE  LEGAL  TENDER  CASES  241 

by  the  Senate  on  February  18,  Bradley's  nomination 
was  postponed,  awaiting  action  on  a  bill  then  pending 
in  Congress  requiring  Judges  to  reside  in  the  Circuit 
to  which  they  were  appointed ;  but  it  was  finally  con- 
firmed on  March  21,  by  a  vote  of  forty-six  to  nine, 
receiving  the  support  of  the  Democrats  and  the  oppo- 
sition of  the  Southern  Republicans.^  The  best  evidence 
that  the  Democrats  did  not  then  suppose  that  Grant 
was  "packing  the  Court"  appears  to  be  the  highly 
fiattering  editorial  comment  of  the  New  York  World  on 
Judge  Bradley.  "By  this  result,  the  Court  gains  an 
accomplished  jurist,  and  the  carpet-baggers  are  dis- 
gracefully defeated  in  their  scheme  of  foisting  upon 
the  highest  judicial  tribunal  in  the  land  one  of  their 
own  class.  .  .  .  The  Democratic  Senators,  have,  from 
the  first,  hailed  the  nomination  of  Mr.  Bradley  as  that 
of  one  so  respectable  and  worthy,  though  a  Republican, 
that  the  wonder  grew  how  Grant  ever  came  to  pick 
him  out.  .  .  .  He  is  in  all  respects  worthy  of  it.  We 
confidently  look  to  him  and  to  Judge  Strong  as  active 
allies  with  the  Chief  Justice  and  his  conservative 
brethren  in  keeping  the  great  tribunal  of  the  land  up 
to  the  mark  where  Marshall  and  Taney  left  it.  Mr. 
Bradley  goes  on  the  Bench  utterly  untrammelled." 

On  March  25,  four  days  after  confirmation  of  the 
Judges,  Attorney-General  Hoar  produced  a  sensation 
by  moving  in  the  Supreme  Court  that  two  of  the  Legal 
Tender  Cases y  Latham  v.  United  States  and  Deming  v. 
United  States^  then  pending  and  which  involved  con- 
tracts made  after  the  passage  of  the  Act  be  taken  up  for 
argimient.     While  predictions  had  been  current  that 

^  New  York  Herald,  Feb.  8,  18,  1870;  New  York  World,  Feb.  9,  1870,  March  1. 
3,  1870.  On  March  2,  Bradl^*8  name  came  up  m  the  Senate  and  after  speeches 
by  the  Southern  Senators  opposing  him,  action  was  postponed.  New  York  World, 
March  22,  2d,  1870;  Boeton  Daily  Advertiser,  March  22,  1870,  described  fully  the 
confirmation  and  the  opposition  of  Southern  Senators  and  of  Thayer  of  Nebraska. 


242  THE  SUPREME  COURT 

such  an  attempt  would  be  made,  and  while  the  Radical 
Republicans  and  the  Greenbackers  were  threatening 
dire  results  politically  and  financially,  unless  the  Court 
should  reopen  the  question,  nevertheless,  the  general 
public  had  assumed  that  the  question  of  constitution- 
ality was  to  be  considered  as  completely  settled  in  the 
Hepburn  Case}  Hence,  when  on  April  1  the  Court 
announced  that  the  cases  would  be  heard  on  April  11, 
on  all  the  questions  involved,  thus  reopening  the  Hep- 
hum  Casey  the  action  produced  a  marked  sensation  in 
the  community ;  ^  and  there  was  much  sjmapathy  ex- 
pressed with  the  vigorous  dissent  filed  by  Chief  Justice 
Chase,  and  Judges  Nelson,  Clifford  and  Field.  The 
Court's  reasons,  however,  for  granting  a  rehearing  were 
well  staited  later  by  Judge  Strong,  12  Wall.  529 :  "It 
would  be  difficult  to  over-estimate  the  consequences 
which  must  follow  our  decision.  They  will  affect  the 
entire  business  of  the  country,  and  take  hold  of  the 
possible  continued  existence  of  the  government.  If  it 
be  held  by  this  Court  that  Congress  has  no  constitu- 
tional power  under  any  circumstances,  or  in  any  emer- 
gency, to  make  treasury  notes  a  legal  tender  for  the 
pajmient  of  all  debts  (a  power  confessedly  possessed 
by  every  independent  sovereignty  other  than  the 
United  States),  the  Government  is  without  those  means 
of  self-preservation  which,  all  must  admit,  may,  in  cer- 
tain contingencies,  become  indispensable,  even  if  they 
were  not  when  the  Acts  of  Congress  now  called  in  ques- 
tion were  enacted.  It  is  also  clear  that  if  we  hold  the 
Acts  invalid  as  applicable  to  debts  incurred  or  trans- 
actions which  have  taken  place  since  their  enactment, 
our  decision  must  cause,  throughout  the  country,  great 
business   derangement,   widespread   distress   and   the 

1  See  NaHon,  March  24,  1870. 

*  See  Botion  Daily  Advertiser.  April  2,  1870. 


THE  LEGAL  TENDER  CASES  «4S 

rankest  injustice.  .  .  .    These  consequences  are  too 
obvious  to  admit  of  question/' 

Of  course,  the  answer  to  all  this  was,  that  the  Court 
should  not  concern  itself  with  "consequences",  but 
only  with  the  question  of  constitutional  limits,  regard- 
less of  results  produced.  There  was,  however,  popular 
support  in  many  directions,  chiefly  based  on  financial 
reasons,  for  the  Court's  action  in  ordering  a  rehearing ; 
while  the  argument  that  the  authority  in  the  Govern- 
ment was  requisite  for  the  public  security  was  naturaUy 
an  appealing  one.  Harper^s  Weeklpy  which  favored 
reargument,  issued  this  warning  to  the  Court:  "The 
relations  of  the  Court  to  Congress,  as  prescribed  in  the 
Constitution,  constitute  a  powerful  reason  for  the  ut- 
most delicacy  in  the  treatment  of  questions  of  Congres- 
sional power.  .  .  .  Far  be  it  from  us  to  wish  to  limit 
in  any  degree  the  perfect  independence  of  the  Judiciary, 
as  we  regard  this  freedom  as  the  sheet-anchor  of  our 
safety ;  but  prudence  requires  that  a  tribunal,  subjected 
so  materially  to  the  power  of  Congress  by  the  funda- 
mental law,  should  continue  to  use  the  same  delicacy 
in  questions  affecting  Congressional  power  which  gov- 
erned the  Court  when  Marshall  presided  over  its  delib- 
erations. Its  dignity  and  usefulness  will  always  be 
promoted  by  extreme  caution.  The  exhibition  of  this 
care  will  command  public  confidence,  and  prevent  ex- 
tremities in  providing  for  the  regtdations  which  Con- 
gress is  empowered  to  make."  The  Nation,  on  the 
other  hand,  stated  that  there  was  danger  to  the  Court  in 
the  process  through  which  it  was  now  going,  and  that  it 
would  never  long  survive  the  loss  of  popular  respect : 
"We  find  very  little  difference  of  opinion  in  the  press 
as  to  the  gross  impropriety  (to  use  a  veiy  mild  term) 
of  the  reopening  of  the  Legal  Tender  decision.  It  is, 
in  every  way  one  looks  at  it,  a  blunder."    It  feared. 


244  THE  SUPREME  COURT 

moreover,  that  this  was  a  beginning  of  refusal  by  parties 
affected  by  a  decision  to  accept  any  ruling  as  final ;  and 
it  said  that  ^'the  country  ought  to  speak  out  boldly 
against  these  disgraceful  beginnings/'^  The  Spring^ 
field  Republican  said  that  it  still  hoped  that  ^Hhe 
country  is  to  be  spared  this  great  wrong  and  scandal  of 
a  reversal." 

Whatever  may  have  been  the  popular  view  in  1870, 
there  is  no  doubt  that  ever  since  that  era  the  Court's 
action  in  reopening  its  first  decision  has  been  regarded 
as  a  very  grave  mistake  —  and  a  mistake  which  for 
many  years  impaired  the  people's  confidence,  not  in  the 
honesty,  but  in  the  impartiality  and  good  sense  of  the 
Court.  Not  only  was  the  Court's  action  unfortunate, 
but  the  manner  in  which  it  was  taken  caused  an  unpleas- 
ant degree  of  friction,  —  an  instance  of  which  on  April 
11, 1870,  was  described  by  a  Washington  correspondent 
as  follows:  "There  was  a  very  lively  scene  at  the 
Supreme  Court  this  morning,  the  oldest  lawyers  prac- 
ticing there  having  witnessed  nothing  like  it  in  their 
day."  Counsel  during  the  argument  of  the  Latham  and 
Deming  appeals  having  stated  that  when  Evarts  was 
Attorney-General  an  order  had  been  made  by  the  Court 
that  these  cases  should  abide  the  result  in  the  Hepburn 
Casej  Attorney-General  Hoar  now  denied  that  there 
had  been  any  such  order,  and  "the  Chief  Justice  here 
interrupted  to  say  that  according  to  his  recollection 
such  an  order  had  been  made.  This  was  said  with 
evident  feeling  and  Justice  Miller  remarked  with  equal 
feeling  that  he  knew  of  no  such  order.  Justice  Nelson 
came  to  the  rescue  of  the  Chief  Justice,  and  Justice  Davis 
spoke  up,  saying  that  he  concmred  with  Justice  Miller. 
The  Chief  Justice  repeated  his  statement  with  emphasis 

>  Harper's  Weekly,  April  16»  1870;  NaHon,  April  7, 14.  21.  28. 1870;  SpringfiM 
RepubUoan,  April  8,  1870. 


THE  LEGAL  TENDER  CASES  245 

and  hardly  suppressed  passion,  and  then  upon  the  sug- 
gestion of  Judge  Davis,  who  remarked  that  it  was  not 
worth  while  to  bandy  words,  it  was  decided  that  the 
cases  might  go  over  to  next  Monday.  The  Attorney- 
General  meantime  bowed  to  the  recollection  of  the  Chief 
Justice,  and  merely  expressed  his  regret  that  in  a  matter 
of  this  importance  there  was  no  record/'^  This  action 
of  the  Court,  however,  in  reopening  the  question  had 
no  immediate  effect ;  for  on  April  18,  1870,  the  coun- 
sel for  the  appellants  in  the  Latham  and  Deming  Causes 
moved  to  dismiss  their  appeals,  and  after  some  discus- 
sion and  variance  of  opinion,  the  motion  was  granted.^ 
The  American  Law  Review  expressed  the  hope,  which  was 
shared  by  most  conservative  men,  that  the  question 
was  finally  settled  and  would  not  be  disturbed  in  the 
Court:  "The  inferior  Courts  throughout  the  country 
have  been  adapting  their  opinions  to  the  decision  pro- 
nounced in  Hepburn  v.  Qriswoldy  and  declaring  contracts 
made  previous  to  the  passage  of  the  Legal  Tender  Act, 
payable  in  gold.  This  has  gone  so  far  that  we  observe 
in  our  recent  exchanges  one  or  two  reported  decisions 
following  Hepburn  v.  Qriswold.  To  upset  Hepburn  v. 
Qriswold  now  would  be  to  upset  all  these  subsequent 

1  Bofton  DoAy  Adoeriiser,  April  12,  1870.  On  April  18,  it  said  that  the  afFair 
had  been  the  subject  of  a  good  deal  of  talk  among  lawyers  present  and  that  the  Chief 
Justice  showed  strong  passion.  "  It  is  evident  that  there  is  a  state  of  feeling  in  the 
Court  by  no  means  pleasant."  Amer,  Law  Reo.  (1870),  V,  158,  866;  the  Nation, 
April  14,  1870,  spoke  of  "an  unseemly  squabble  on  the  bench  in  open  Court." 

Chase  prepared  a  memorandum  in  which  he  made  allegations  that  the  Judges 
who  formed  the  minority  in  the  Hepburn  Case  and  who  now  were  part  of  the  major- 
ity of  the  Court  had  agreed  that  the  Hepburn  Case  decision  should  settle  all  the 
other  cases  pending.  This  raised  a  point  of  bad  faith  on  the  part  of  his  associates, 
and  learning  that  th^  were  prepared  to  deny  it.  Chase  withdrew  his  memorandum. 
Later  its  substance  appeared  in  a  biography ;  whereupon  in  1001,  Charles  Bradley 
in  MiecellaneauB  Writinge  of  the  late  Hon.  Joseph  P.  Bradley  (1902)  published  for 
the  first  time  a  statement  written  by  Judge  Miller  and  signed  by  the  majority  of 
the  Court,  April  80, 1870,  giving  a  detailed  statement  of  all  facts  concerning  these 
cases,  which  completely  disproved  Chase's  allegation ;  see  also  Oreen  Bag  (1902), 
XIV,  208. 

*  Laiham  and  Deming* s  Appeals^  9  WaU.  145 ;  Botion  Daily  Adeertiser,  April  22» 
1870. 


246  THE  SUPREME  COURT 

adjudications;  and  that  the  business  interests  of  the 
country  can  demand  such  chronic  vacillation  in  the  law 
as  this  would  imply,  we  cannot  believe.  And  this,  too, 
is  a  minor  point.  The  great  objection  to  opening  the 
Legal  Tender  decision  is,  that  the  Supreme  Court  cannot 
do  it  without  degrading  itself  in  the  eyes  of  all  intelli- 
gent men ;  and  this  fact,  we  should  think  the  new  mem- 
bers of  the  Court  would  recognize,  quite  as  distinctly  as 
the  old.  We  believe  we  express  the  opinion  of  every  un- 
biased lawyer  throughout  the  United  States,  when  we 
say  that  the  reopening  of  the  Legal  Tender  Cases  would 
be  a  terrible  blow  at  the  independence  and  dignity  of 
the  profession." 

There  was,  moreover,  a  general  relief  over  the  with- 
drawal of  the  appeals,  since  it  seemed  apparent  that,  if 
the  decision  should  be  reversed,  a  political  movement 
might  be  initiated  to  reverse  this  second  decision,  by 
adding  still  more  Judges  to  the  Court;  and  thus  the 
question  of  the  Judiciary  might  be  injected  into  the 
approaching  Presidential  campaign.  All  hopes,  how- 
ever, that  the  issue  might  be  considered  settled  were 
dashed  when,  on  April  30,  1870,  the  Court  ordered  the 
reargument  of  the  case  of  Knox  v.  Lee,  12  Wall.  467, 
which  had  been  already  argued  in  November,  1869,  and 
which  involved  primarily  the  confiscation  law  of  one 
of  the  Confederate  States.  At  the  reargument  on 
February  23,  1871,  counsel  for  both  sides  admitted  the 
validity  of  the  Legal  Tender  Acts  so  far  as  they  affected 
this  case,  and  did  not  raise  the  point ;  but  at  its  close, 
Clarkson  N.  Potter,  who  had  argued  the  Hepburn  Case, 
asked  to  be  heard  on  the  constitutional  question ;  and 
the  Court,  over  the  dissent  of  Judges  Clifford,  Nelson 
and  Field,  ordered  a  second  reargiunent  by  Potter 
and  Attorney-General  Akerman,  on  the  constitutional 
question.    The  matter  being  thus  reopened,  and  heard 


THE  LEGAL  TENDER  CASES  247 

on  April  18,  19,  1871,  the  Court  rendered  a  decision, 
ten  days  later,  on  May  1,  reversing  ffepfewm  v.  Griswold 
and  sustaining  the  Legal  Tender  Acts  in  the  broadest 
possible  manner,  as  a  valid  exercise  by  Congress  of  the 
war  power,  in  respect  to  all  contracts  whether  made 
after  or  before  the  passage  of  the  Acts.  In  this  opinion, 
the  new  Judges  Strong  and  Bradley  united  with  the 
former  minority,  Swayne,  Miller  and  Davis,  while  the 
Chief  Justice,  Nelson,  Clifford  and  Field  dissented  and 
reaffirmed  their  previous  decision. 

This  reversal  by  the  Court  of  a  decision  which  had 
been  rendered  only  fifteen  months  before  was  regretted 
on  all  sides,  both  by  many  who  agreed  with  its  conclu- 
sion as  well  as  by  those  who  held  the  contrary  view. 
"It  is  a  grievous  mistake,''  said  the  Springfield  Repub- 
lican.  '*  It  will  greatly  aggravate  the  growing  contempt 
for  what  has  long  been  the  most  respected  and  the  most 
influential  department  of  our  government,  its  Judiciary.'* 
"The  present  action  of  the  Court,"  said  the  iVcrfion," is 
to  be  deplored,  first,  because  this  sudden  reversal  of  a  for- 
mer judgment  which  had  been  maturely  considered  after 
full  argimient,  will  weaken  popular  respect  for  all  de- 
cisions of  the  Court  including  this  last  one;  second, 
because  the  value  of  a  judgment  does  not  depend  on  the 
number  of  Judges  who  concur  in  it  —  Judges  being 
weighed,  not  counted,  and  because  of  the  rehearing  of  a 
cause,  in  consequence  of  the  number  of  Judges  having 
been  increased,  is  peculiarly,  and  for  obvious  reasons, 
objectionable,  where  the  number  is  dependent  on  the 
will  of  the  very  body  whose  acts  the  Court  has  to  re- 
view, and  which  in  this  very  case  it  is  reviewing ;  and 
third,  because  the  Judges  who  have  been  added  to  the 
Bench  since  the  former  decision  are  men  who  were  at 
the  Bar  when  that  decision  was  rendered,  and  were  in- 
terested professionally  and  personally  in  having  a  dif- 


248  THE  SUPREME  COURT 

ferent  decision.  We  do  not  mean  to  insinuate  that  this 
has  affected  their  judgment,  but  we  do  say  that  it  is  not 
enough  for  a  Judge  to  be  pure;  he  must  be  likewise 
above  suspicion;  that  is,  he  miist  not  only  be  honest, 
but  must  give  no  man  any  reason  for  thinking  him 
otherwise  than  honest."  ^  Many  who  believed  in  their 
absolute  honesty  felt  that  the  new  Judges,  as  a  matter 
of  propriety,  should  have  refrained  from  taking  part  in 
the  decision ;  and  they  agreed  with  the  New  York  Trib- 
unej  which  said  that  the  assurance  given  by  various 
papers  that  the  new  Judges  divested  themselves  abso- 
lutely of  their  railroad  interests  in  going  upon  the  Bench 
did  not  touch  the  point  of  the  complaint.  ^'It  was  an 
essentially  improper  thing  that  a  recent  and  earnest 
paid  advocate  of  the  constitutionality  of  the  Legal 
Tender  Act  should  take  his  seat  upon  the  Supreme 
Bench  to  decide  its  constitutionality.  Let  him  be  as 
pure  as  snow,  he  cannot,  for  this,  escape  condemna- 
tion. ...  It  will  not  be  easy  to  restore  pubUc  respect 
and  reverence  for  the  tribunal  which  this  decision  has 
sacrificed.*'  With  this  violently  Republican  paper,  the 
equally  violent  New  York  World  joined  in  assailing  the 
decision  and  reiterating  the  charge,  which  had  been 
made  in  the  previous  year,  that  the  Court  had  been 
"packed"  —  a  charge  which,  as  noted  above,  has  since 
been  completely  exploded.  "The  decision  provokes 
the  indignant  contempt  of  thinking  men.  It  is  gen- 
erally regarded  not  as  the  solemn  adjudication  of  an 
upright  and  impartial  tribunal,  but  as  a  base  compli- 
ance with  Executive  instructions  by  creatures  of  the 
President  placed  upon  the  Bench  to  carry  out  his  in- 
structions."   And  in  this  curious  combination  of  news- 

1  NaJAofKy  April  27,  1871 ;  New  York  Tribune,  May  1,  t,  1871 ;  New  York  World, 
Biay  8,  8, 1871 ;  New  York  Times,  May  S,  1871 ;  New  York  Herald,  May  S,  1871 ; 
Springfield  Republican,  May  5,  1871;  Harper*e  Weekly,  May  StO,  1871;  Cinein- 
noH  Enquirer,  May  6,  S,  10,  1871. 


THE  LEGAL  TENDER  CASES  249 

paper  opinion,  the  New  York  Evening  Post  joined,  de- 
claring that  the  decision  was  the  voice  of  the  Adminis- 
tration, and  not  of  the  law,  and  that  under  this  practice 
of  reconstituting  the  Court,  if  tolerated,  "the  Consti- 
tution and  its  interpretation  cease  to  limit  the  National 
Government  and  become  just  what  the  appointing 
power  choose  to  make  them." 

On  the  other  hand,  an  equally  curious  combination 
of  diverse  political  and  other  interests  defended  the 
decision.  "Happily  for  the  country,  the  opinion  of 
the  Chief  Justice  did  not  prevail,**  said  the  New  York 
Times.  "The  country  will  be  satisfied,"  said  the  New 
York  Herald.  That  the  character  of  the  new  Judges 
"forbids  any  suspicion  of  other  than  the  best  motives 
in  their  action",  was  the  view  of  Harper's  Weekly;  and 
it  added  (with  some  extravagance  of  statement)  that 
the  chief  class  of  person  who  would  regard  the  decision 
"with  profound  disgust"  was  "all  those  who  wish  to 
see  the  powers  of  the  National  Government  against  its 
enemies  weakened."  And  the  Cincinnati  Enquirer, 
a  Democratic  advocate  of  greenbacks,  stated  that  the 
people  of  the  country  would  be  benefited  by  the  de- 
cision, though  the  Republican  charges  against  the  Re- 
publican Judges  were  "  very  mortifying  to  every  Amer- 
ican who  has  pride  in  the  honor  of  his  country  and  in 
the  integrity  of  the  Judiciary."  There  was  thus  pre- 
sented the  singular  spectacle  of  strong  adherents  of 
National  power  opposing  a  judicial  opinion  which  voiced 
most  extreme  limits  of  such  power,  and  ardent  advo- 
cates of  a  non-centralized  Government  praising  a  de- 
cision which  vastly  increased  the  authority  of  the  Na- 
tional Government. 

In  the  year  following  its  decision  in  the  Legal  Tender 
Cases  y  the  Court  once  more  upheld  in  the  most  extreme 
terms  the  powers  of  the  National  Government  in  its 


250  THE  SUPREME  COURT 

relation  to  the  States.  In  United  States  v.  TarhlCy  13 
Wall.  397,  a  State  Commissioner  of  Wisconsin  had  is- 
sued a  writ  of  habeas  corpus  discharging  a  man  held  by 
the  United  States  Army  for  trial  by  military  tribunal 
on  charge  of  desertion.  The  Court  held,  on  March  11, 
1872,  that  if  on  application  for  habeas  corpiis  made  to 
a  State  official  it  should  appear  by  the  return  that  the 
petitioner  was  "confined  under  the  authority  or  claim 
and  color  of  authority  of  the  United  States  by  an  officer 
of  the  Government",  the  writ  must  be  refused;  and 
that  the  State  official  had  no  power  to  issue  a  writ  under 
such  conditions.  "Whenever  any  conflict  arises  be- 
tween the  enactments  of  the  two  sovereignties,  or  in  the 
enforcement  of  their  asserted  authorities,  those  of  the 
National  Government  must  have  supremacy  until  the 
validity  of  the  different  enactments  and  authorities  can 
be  finally  determined  by  the  tribunals  of  the  United 
States.  This  temporary  supremacy,  until  judicial 
decision  by  the  National  tribunals,  and  the  ultimate 
determination  of  the  conflict  by  such  decision,  are  es- 
sential to  the  preservation  of  order  and  peace,  and  the 
avoidance  of  forcible  collision  between  the  two  Govern- 
ments." It  is  interesting  to  note  that  a  Democratic 
Judge,  Field,  wrote  this  opinion,  reasserting  the  Na- 
tional supremacy  previously  voiced  by  a  Democratic 
Chief  Jiistice  in  the  Booth  Case  while  the  Republican 
Chief  Justice,  Chase,  dissented  in  an  opinion  strongly 
upholding  the  powers  of  the  States. 

In  1873,  in  Olcotl  v.  Supervisors,  16  Wall.  678,  the 
Court  reaffirmed  its  adherence  to  a  doctrine,  which  it 
had  first  announced  in  1864,  and  which,  upheld  through- 
out this  critical  post-war  period,  probably  had  a 
more  important  effect  upon  the  commercial  develop- 
ment of  the  country  than  any  other  of  the  Court's 
extensions  of  National  power.    This  was  the  doctrine 


THE  LEGAL  TENDER  CASES  261 

by  virtue  of  which  the  Federal  Courts  were  held  to  be 
vested  with  power  to  disregard  the  decisions  of  State 
Courts  on  the  validity  of  the  issue  of  municipal  bonds. 
The  decision  asserting  this  power  arose  out  of  eco- 
nomic conditions  which  had  prevailed  for  a  long  period 
prior.  From  1840  to  1860,  the  States  of  the  Union,  es- 
pecially in  the  Central  West,  had  run  riot  in  authoriz- 
ing municipalities  to  vote  money  and  to  issue  bonds, 
and  the  constitutional  power  to  extend  such  aid  to 
public  corporations  had  been,  in  general,  upheld  by  the 
State  Courts.^  Gradually,  the  extensive  frauds  com- 
mitted by  both  the  officers  of  municipalities  and  by 
officers  of  the  railroads,  the  enormous  loans  made  to 
corporations  which  failed  to  fulfill  the  objects  for  which 
the  money  was  loaned  or  granted,  produced  a  revulsion 
of  feeling ;  counties,  cities  and  towns  entered  on  a  course 
of  repudiation,  and  State  Courts  reversed  or  overruled 
their  previous  judgments  and  denied  the  power  of  the 
Legislatures  to  authorize  municipalities  to  issue  such 
bonds.  Such  were  the  conditions,  therefore,  which 
existed,  when,  in  1864,  the  case  of  Gelpcke  v.  Dvbuque 
came  before  the  Court  on  appeal  from  a  Circuit  Court 
of  the  United  States.  The  State  Supreme  Court  of 
Iowa  had,  in  many  opinions  from  1853  to  1859,  sustained 
the  validity  of  municipal  bonds  issued  in  aid  of  rail- 
roads ;  but  in  1860,  it  had  given  an  opinion  overruling 
all  the  previous  cases.  Suit  being  brought  on  bonds 
issued  by  a  city  while  the  former  State  decisions  pre- 
vailed, it  was  contended  by  cQunsel  for  the  city  that  the 
Court  must  adhere  to  its  established  doctrine  of  follow- 
ing the  latest  construction  of  a  State  Constitution  made 
by  a  State  Court.    But  by  adopting  such  a  rule  in  these 

'  See  especially  deflcription  of  these  conditions  by  Judge  Jeremiah  S.  Black  in 
SharpUu  ▼.  Mayor,  21  Pa.  St.  147 ;  Awier.  Law  Reg.  (1868).  n ;  in  RUekie  ▼.  Frank- 
lin  County,  22  Wall.  67,  in  1875,  Judge  Davis  referred  to  "  the  weU  known  mania  of 
the  people  to  run  in  debt  for  public  improvements.*' 


252  THE  SUPREME  COURT 

cases,  the  Court  would  give  countenance  to  repudiation, 
and  would  bring  untold  losses  upon  thousands  of  in- 
nocent bondholders  who  had  invested  their  money  on 
the  faith  of  apparently  established  law.  To  deal  with 
such  a  situation,  the  Court  apparently  had  but  three 
possible  courses  open  to  it ;  either  to  follow  the  latest 
State  decisions ;  or  to  follow  the  earlier  decision  on  the 
ground  that  it  was,  in  fact,  the  ^'latest  settled  adjudi- 
cation " ;  or  to  hold  that  the  question  was  one  of  com- 
mercial law,  and  that  in  accordance  with  its  decision 
in  Stoift  v.  TysoUy  it  would  determine  all  such  questions 
for  itself  regardless  of  the  law  of  the  State.  Instead  of 
following  either  of  these  courses,  however,  the  Court 
decided  the  case  on  an  entirely  new  ground ;  and  in  a 
noted  opinion  by  Judge  Swayne  held  that  where  a  con- 
tract was  valid  by  the  law  of  a  State  as  expounded  by 
its  Judiciary  at  the  time  it  was  made,  it  could  not  be 
impaired,  either  by  subsequent  action  of  a  Legislature 
or  decision  of  a  State  Court,  and  that  this  rule  '^  rests 
upon  the  plainest  principles  of  justice."  While  not 
unmindful  of  the  importance  of  uniformity  in  the  de- 
cisions of  the  Court,  and  those  of  the  highest  local 
Courts,  "we  shall  never",  he  said,  "inundate  truth, 
justice,  and  the  law,  Ijecause  a  State  tribunal  has 
erected  the  altar,  and  decreed  the  sacrifice."  And  in 
later  cases,  it  held  that  "such  a  rule  is  based  upon  the 
highest  principles  of  justice."  While  it  was  difficult 
to  reconcile  this  equitable  doctrine  with  the  duty  im- 
posed on  Federal  Courts  by  the  Thirty-Fourth  Section 
of  the  Judiciary  Act  to  follow  the  laws  of  the  State,  and 
while  from  time  to  time  the  Court  advanced  varying 
grounds  for  its  action,^  nevertheless,  it  continued  for  the 

^  The  Court's  theory  of  impairment  of  obligation  of  contract  by  judicial  deci- 
sion was  reiterated  in  Oleott  v.  Supervisort,  16  WaU.  678,  in  1878,  and  Towtukip  of 
Fine  Qro9e  ▼.  TaieoU,  19  WaU.  666,  in  1874,  but  was  gradually  abandoned  until 


t 

\ 


THE  LEGAL  TENDER  CASES  «58 

next  twenty  years  consistently  to  disregard  opinions  of 
the  State  Courts  denying  the  validity  of  these  municipal 
railroad  aid  bonds,  to  formulate  its  own  commercial 
law  on  the  subject  and  to  discountenance  every  form 
of  attempted  repudiation  of  debt.^  While  the  doctrine 
thus  firmly  asserted  by  the  Court  had  an  inestimable 
effect  upon  the  material  and  moral  prosperity  of  the 
country  in  restoring  confidence  in  a  class  of  securities 
which  were  an  indispensable  factor  in  the  development 
of  municipal  and  industrial  enterprises,  it  became,  on 
the  other  hand,  a  somewhat  serious  factor  in  the  history 
of  the  relations  of  the  Court  to  the  American  people. 
For  owing  to  the  pronounced  feelings  of  hostility  to  the 
Federal  Judiciary  which  these  bond  decisions  aroused 
through  the  Central  West,  popular  confidence  in,  and 
support  of,  the  supreme  tribunal  were  weakened,  at  the 
precise  time  when  such  confidence  and  support  were  es- 
pecially needed.  These  bond  decisions  were  rendered 
during  the  partisan  and  passionate  contests  which  cen- 
tered around  Reconstruction  legislation,  and  at  the  very 
period  when  the  Court  was  being  made  the  subject  of 

it  WM  entirely  repudiated  in  1888  in  New  Orleans  Waterworks  v.  Louisiana  Sugar 
Co^  125  U.  S.  18,  80.  See  Impairment  qf  Contract  hy  Judicial  Decisions,  by  Coniad 
Reno,  Amer.  Law  Rev,  (1889),  XXXII.  Ph>f.  James  B.  Tfaayer  upheld  the  decision 
on  the  ground  that  it  was  a  rule  adopted  by  the  Court  to  shape  its  discretion  in  mat^ 
ten  arising  in  the  Federal  Circuit  Courts  in  suits  based  on  diverse  citizenship  and  in- 
volving the  construction  of  State  laws  and  Constitutions,  and  termed  it  a  just  and 
wholesome  one.  The  Scope  of  Qdpcke  v.  Dubuque,  Hon.  Law  Rev.  (1891),  IV ; 
Und.  (1898).  Vm. 

^Sot  Municipal  Corporations  (1874,  2d  ed.)  by  John  F.  Dillon,  sec.  416;  The 
Ruie  in  Odpeke  v.  Dubuque,  by  John  M.  Read  (Chief  Justice  of  Pennsylvania), 
Amer.  Law  Res.  (1875),  IX;  RaHroad  Aid  Bonds  in  ike  Supreme  Court,  by  James 
F.  Mister,  Amer,  Law  Reg,  (1878),  n.  b.,  XVII ;  Statutory  Fowers  in  Bond  Cases, 
ibid.  (1881),  N.  s.,  XX;  Munidpid  Bonds,  by  Frank  W.  Hackett,  Bare,  Law  Rev, 
(1891),  V;  see  also  Law  qf  Municipal  Bonds,  in  Southern  Law  Ree.  (1876),  n.  b., 
II ;  (1881),  VII :  "The  Supreme  Court  has  upheld  the  right  of  holders  with  a  strong 
hand,  and  has  set  a  face  of  flint  against  repudiation,  even  when  made  on  legal 
ground  deemed  solid  by  the  State  Courts,  by  municipalities  which  had  been  de- 
ceived and  defrauded.  That  such  securities  have  any  general  value  left  is  largely 
due  to  this  course  of  adjudication  and  to  the  reliance  f dt  by  the  public  that  it  will 
itand  firmly  by  its  doctrines." 


254  THE  SUPREME  COURT 

most  violent  attacks  in  Congress  and  in  the  press. 
That  the  Court  had  taken  a  position  in  the  bond  cases 
which  must  bring  it  into  disfavor  with  large  portions  of 
the  pubUc  had  been  predicted  at  the  outset  by  Judge 
MiUer,  in  his  strong  dissenting  opinion  in  the  Gelpcke 
Case ;  and  the  fulfillment  of  his  prophecy  was  seen  in  the 
numerous  clashes  which  ensued  during  the  next  thirty 
years,  and  which  resulted  in  bringing  before  the  Court 
for  its  decision  during  that  period  approximately  three 
hundred  municipal  bond  cases  —  a  larger  number  than 
on  any  other  subject  presented  for  its  consideration.^ 

^  Judge  Davis  said  in  Tkonuon  v.  Lee  County,  8  Wall.  827,  in  1866 :  "There  is 
hatdly  any  question  connected  with  this  species  of  securities  that  has  not  been  dis- 
cussed and  decided  by  the  Court."  This  statement  showed  curiously  little  appre- 
ciation of  the  troubles  that  were  to  face  the  Court,  since  in  succeeding  years  the  Court 
had  before  it  about  three  hundred  cases  involving  such  bonds.  Of  these  cases, 
sixty-five  arose  in  Illinois ;  fifty  in  Missouri ;  twenty-five  in  Iowa ;  twenty-two  in 
Kansas;  eighteen  in  Wisconsin;  fourteen  in  New  York;  eleven  in  Indiana;  nine 
each  in  Kentucky  and  Tennessee ;  the  others  being  scattered  over  eighteen  States ; 
none,  however,  arising  in  New  EngUnd. 


CHAPTER  THIRTY-TWO 

THE  SIAU6HTERH0USE  CASES  AND  THE  DEATH 

OF  CHASE 

1878 

As  the  preceding  chapters  have  shown,  the  period  of 
Chase's  Chief  Justiceship  had  constituted  an  era  of 
Nationalism,  and  the  pronounced  trend  of  the  Court 
was  significantly  noted  at  this  time  in  a  review  of  the 
first  digest  of  decisions  of  the  Federal  Courts:  "The 
great  increase  in  the  strength  and  influence  of  the  Fed- 
eral Government,  which  has  been  the  natural  conse- 
quence of  the  triumph  over  a  gigantic  rebellion,  is  no- 
where more  clearly  evinced  than  in  the  enhanced 
interest  felt  by  the  Bar  of  the  whole  country  in  the  de- 
cisions of  the  Federal  Courts  ...  or  in  the  newly  felt 
importance  of  the  Federal  Judiciary."  *  With  the  year 
1873,  however,  there  came  a  distinct  reaction  from  this 
extreme  Nationalism.  That  the  Court  from  1870  to 
1873  was  receding  somewhat  from  the  almost  unvaried 
support  which  it  had  theretofore  given  to  Congressional 
power  had  been  seen  in  the  increased  instances  in  which 
it  had  exercised  its  function  of  declaring  Federal  leg- 
islation to  be  violative  of  the  Constitution.  While  in 
the  eighty-one  years  from  1789  to  1869,  only  four  Acts 
of  Congress  had  been  declared  invalid,  in  the  four  years 
from  1870  to  1873,  six  of  such  Acts  were  held  unconsti- 
tutional.^   Signs  of  a  reaction  in  favor  of  the  State 

^  We9iem  Jurist,  U,  819,  review  of  Brightly's  Digest. 

^Marlmry  ▼.  Madison  (1809),  1  Cranch,  187;  Dred  8coU  v.  Sandford  (1857), 
10  How.  898 ;  Gordon  v.  UnUsd  States  (18«5),  2  Wall.  561 ;  Ex  paHe  Garland  (1867), 
4  WaU.  888;   Hepimm  v.  Griswold  (1870),  8  WaU.  608;  United  States  v.  De  Wiit 


«66  THE  SUPREME  COURT 

powers  had  appeared  as  early  as  1870,  when,  two  months 
after  the  first  Legal  Tender  Case  decision,  the  Court 
upheld,  in  Thomson  v.  Union  Pacific  R.  /J.,  9  Wall.  579, 
the  right  of  a  State  to  tax  the  property  of  a  railroad 
even  when  built  with  Government  money  and  acting 
as  a  Government  agency.  Attorney-General  Hoar 
had  argued  eloquently  against  such  an  interference,  say- 
ing :  ""It  is  a  military,  postal  and  commercial  road  and 
came  out  of  the  throes  of  the  rebellion.  It  -was  de- 
signed to  promote  the  imity  and  indivisibility  of  our 
people  ...  a  work  which  more  than  any  other  ever 
undertaken  by  the  Government  tends  to  consolidate 
peace  and  to  maintain  the  dignity  and  reflect  the  glory 
of  the  nation."  The  Court,  however,  by  Chief  Justice 
Chase,  held  that  while  taxation  of  the  agency  is  taxation 
of  the  means  employed  by  the  Government,  "there  is  a 
clear  distinction  between  the  means  employed  by  the 
Government  and  the  property  of  agents  employed 
by  the  Government.  .  .  .  Taxation  of  the  agency  is 
taxation  of  the  means ;  taxation  of  the  property  of  the 
agent  is  not  always,  or  generally,  taxation  of  the  means.'* 
In  the  absence  of  interposition  by  Congress  to  protect 
this  property  from  State  taxation,  it  held  that  it  must 
be  assumed  that  the  State  power  to  tax  was  not  being 
employed  so  as  to  defeat  or  hinder  the  operation  of  the 
National  Government.^ 

Another  sign  of  reaction  came  in  1871,  when,  one 
month  before  the  second  Legal  Tender  Case  decision, 
the  Court  had  occasion,  in  Collector  v.  Day,  11  Wall.  113, 

(1870),  9  Wall.  41 ;  Justices  v.  Murray  (1870),  9  WaU.  274 ;  Collector  y.  Day  (1871), 
11  WaU.  US;  United  States  v.  Klein  (1872),  18  WaU.  128;  UniUd  States  v.  B.  A  0. 
R.  R.  (1873),  17  WaU.  822. 

^  See  Union  Pacific  R.  R.  v.  PenisUm,  18  WaU.  5,  decided  Dec.  15, 1878,  in  which 
the  same  dedaion  was  made  as  to  a  railroad  chartered  by  Congreas;  see  United 
States  y.  Union  Pacific  R,  R.,  91  U.  S.  72;  United  States  v.  Burlington  &  Mo,  River 
R.  R.,  98  U.  S.  834 ;  PlaU  y.  Union  Pacific  R.  R.,  99  U.  S.  48;  Union  Pacific  jR.  A. 
y.  United  States,  99  U.  S.  402;  Union  Pacific  R.  R.  y.  United  States,  104  U.  S.  862; 
Union  Pacific  R,  R,  y.  United  States,  117  U.  S.  355. 


THE  SLAUGHTERHOUSE   CASES  257 

to  consider  the  right  of  Congress  to  impose  in  time  of 
war  an  income  tax  on  the  salary  of  a  State  judicial  of- 
ficer. It  had  held  that  the  sovereignty  of  a  State  could 
not  thus  ""be  crippled,  much  less  defeated  by  the  taxing 
power  of  another  Government.  .  .  .  The  exemption 
rests  upon  necessary  implication,  and  is  upheld  by  the 
great  law  of  self-preservation;  as  any  government, 
whose  means  employed  in  conducting  its  operations,  if 
subject  to  the  control  of  another  and  distinct  govern- 
ment, can  exist  only  at  the  mercy  of  that  government.'' 
This  decision,  said  the  Cincinnati  Enquirer ^  "that  the 
States  have  rights  which  are  as  sovereign  as  those  of 
the  Greneral  Government,  and  that  the  maintenance  of 
their  political  dignity  and  sovereignty  is  as  essential 
to  good  order  and  the  perpetuity  of  free  institutions  as 
is  the  maintenance  of  the  political  dignity  and  sover- 
eignty of  the  Federal  Government,  knocks  the  pins  from 
under  the  trestle  work  the  Republicans  have  been  erect- 
ing, and  over  which  they  hoped  to  march  the  people 
from  a  land  of  freedom  to  one  of  despotism."  ^ 

It  was  with  the  decision  of  the  famous  Slaughterhouse 
Cases,  16  Wall.  36,  in  1873,  however,  that  the  change  in 
the  attitude  of  the  Court  became  most  marked.  In 
these  cases,  the  Court,  in  construing  for  the  first  time 
the  scope  of  the  Fourteenth  Amendment,  rendered  a 
decision  which  profoundly  affected  the  course  of  the 
future  history  of  the  coimtry. 

Though  the  Amendment  had  been  proclaimed  to  be 
in  force  July  28,  1868,  nearly  five  years  had  elapsed 
before  the  question  of  its  construction  had  been  pre- 
sented for  determination  by  the  Court."    These  Slaugh- 

^  CineinnaH  Enquirer,  May  6, 1871 ;  New  York  WtyrU,  May  2, 11, 1871 ;  the  New 
York  Tribune,  April  29,  May  8,  1871,  attacked  the  decision. 

*  See  10  Wall.  278,  in  1870,  when  the  Court  considered  in  the  Slaughterhouse 
Ctuee,  the  effect  of  a  writ  of  error  as  a  supersedeas.  The  first  case  in  which  the  ap- 
plicability of  this  Amendment  was  urged  was  Worthy  ▼.  Commieeionere,  9  WaJL 

VOL.  m  —  9 


258  THE  SUPREME  COURT 

terhouse  Cases  had  been  pending  since  1870 ;  they  had 
been  argued  in  January,  1872,  but  as  Judge  Nelson  was 
absent,^  and  as  there  was  a  division  of  opinion  among 
the  Judges,  they  were  argued  again,  on  February  S,  4, 5, 
1873,  with  supreme  ability  by  John  A.  Campbell 
against  Matt  H.  Carpenter  and  Thomas  J.  Durant, 
Jeremiah  S.  Black  and  Charles  Allen.^  The  facts  in 
these  cases  presented  a  situation  which  clearly  called 
for  relief,  if  the  Federal  Courts  had  any  power  to  grant 
it.  The  "carpet-bag"  Legislature  of  Louisiana,  un- 
doubtedly under  influence  of  corruption  and  bribery, 
had  passed  a  statute  which  granted  a  monopoly  of  the 
slaughterhouse  business  within  certain  parishes  of  New 
Orleans  in  favor  of  one  corporation,  and  which  deprived 
over  one  thousand  persons  of  the  right  to  engage  in  that 
business.  There  had  been  a  general  feeling  of  outrage 
throughout  the  commimity,  and  the  right  of  a  State  to 
estabUsh  such  a  monopoly  was  vigorously  challenged.* 
Theretofore,  the  legal  questions  presented  would  have 
been  purely  of  State  concern  and  for  exclusive  decision 
by  the  State  Courts.  Now,  it  was  contended  by  the 
opponents  of  the  monopoly  that  rights  guaranteed  by 
the  Fourteenth  Amendment  had  been  violated  by  the 
State  statute,  and  that  it  not  only  abridged  the  priv- 
ileges and  immunities  of  citizens  of  the  United  States, 

611«  but  the  Court  on  Feb.  7,  1870,  held  that  the  point  was  not  properly  claimed  in 
the  State  Court  and  dismiased  the  caae  for  lack  of  Federal  jurisdiction  appearing  in 
the  record. 

^  Judge  Nelson  resigned  Nov.  28, 1872,  at  the  age  of  eighty  and  after  twenty- 
seven  years'  service  on  the  Court  (see  14  Wall.  iz).  To  succeed  him.  President 
Grant  was  urged  and  expected  to  appoint  a  Judge  from  the  South,  either  Thomas 
J.  Durant  of  Louisiana  or  Judge  Duvall  of  Texas;  he  was  also  urged  to  appoint 
William  M.  EvarU  of  New  York  {Harper**  Weekly,  Dec.  14, 1872) ;  but  he  finally 
appointed  Dec.  11,  1872,  Ward  Hunt  of  New  York,  a  man  sixty-two  years  of  age, 
and  a  Judge  of  the  New  York  Court  of  Appeals. 

'  Campbell  had  appeared  before  the  Court  for  the  first  time  since  his  resigna- 
tion, in  Waring  v.  Mayor,  8  Wall.  110,  on  Oct.  12,  1869.  As  to  his  part  in  the 
Slaughterhouae  Cases,  see  especially  John  Archibald  Campbell  (1920),  by  Heniy 
G.  Connor. 

'See  BeoandrticHon  in  Louisiana  afier  1S6S  (1918),  by  Ella  Lonn. 


THE  SLAUGHTERHOUSE  CASES  259 

but  deprived  them  of  their  property  without  due  pro- 
cess of  law»  and  denied  to  them  the  equal  protection  of 
the  laws ;  it  was  further  argued  that  it  constituted  an 
involuntary  servitude,  in  violation  of  the  Thirteenth 
Amendment.  Two  months  after  the  second  argument, 
the  opinion  of  the  Court  was  rendered  by  Judge  Miller, 
on  April  14,  1873,  Judges  CliflFord,  Davis,  Strong  and 
Himt  "Concurring.  It  stated  that  it  was  "impressed 
with  the  gravity  of  the  questions  raised",  and  recog- 
nized the  "great  responsibility"  of  the  decision;  that 
"no  questions  so  far-reaching  and  pervading  in  their 
consequences,  so  profoimdly  interesting  to  the  people  of 
this  country,  and  so  important  in  their  bearing  upon  the 
relations  of  the  United  States  and  of  the  several  States 
to  each  other,  and  to  the  citizens  of  the  States  and  of  the 
United  States,  have  been  before  this  Court  during  the 
official  life  of  any  of  its  present  members"  {i.e.  since 
1858).  After  considering  the  history  of  the  Fourteenth 
Amendment,  the  evil  which  it  was  designed  to  remedy, 
and  its  "pervading  spirit",  the  Court  held  that  the 
Louisiana  statute  did  not  violate  the  Amendment  in  any 
particular ;  that  if  the  right  claimed  by  the  plaintiff  to 
be  freed  of  monopoly  existed,  it  was  not  a  privilege  or 
immunity  of  a  citizen  of  the  United  States  as  distin- 
guished from  a  citizen  of  a  State ;  that  the  Amendment, 
in  defining  a  citizen  of  the  United  States,  did  not  add 
any  additional  privileges  and  immunities  to  those  which 
inhered  in  such  citizens  before  its  adoption,  that  it  was 
only  rights  which  owed  their  existence  to  the  Federal 
Government,  its  National  character,  its  Constitution 
or  its  laws,  that  were  placed  under  the  special  care  of 
the  National  Government ;  that  it  was  not  intended  to 
bring  within  the  power  of  Congress  or  the  jurisdiction 
of  the  Supreme  Court,  "the  entire  domain  of  civil  rights 
heretofore  belonging  exclusively  to  the  States";  and 


260  THE  SUPREME  COURT 

that  to  hold  otherwise  would  "constitute  this  Court  a 
perpetual  censor  upon  all  legislation  of  the  States  on  the 
civil  rights  of  their  own  citizens."  ^  Such,  very  briefly 
stated,  was  this  momentous  opinion.  That  the  de- 
cision, so  far  as  it  concerned  the  provision  of  the  Amend- 
ment forbidding  the  States  to  abridge  the  privileges  and 
inmiunities  of  a  citizen,  rendered  that  clause  a  practical 
nullity,  was  pointed  out  by  the  dissenting  Judges 
(Field,  Swayne,  Bradley  and  Chief  Justice  Chase). 
The  construction  given  by  the  majority  of  the  Court 
made  of  this  clause,  they  said,  "a  vain  and  idle  enact- 
ment which  accomplished  nothing,  and  most  unneces- 
sarily excited  Congress  and  the  people  on  its  passage" ; 
for  "with  privileges  and  immunities  pertaining  only  to 
citizens  of  the  United  States  ds  suchy  no  State  ever  could 
have  interfered  by  its  laws",  and  no  new  constitutional 
provision  was  required  to  inhibit  such  interference. 
The  supremacy  of  the  Constitution  and  laws  of  the 
United  States  always  controlled  any  State  legislation 
of  that  character,  even  before  the  Fourteenth  Amend- 
ment. Accordingly,  the  dissenting  Judges  were  of 
opinion  that  the  Amendment  must  be  given  such  a 
construction  as  to  render  it  of  some  eflFect;  and  they 
held  that  the  monopoly  was  a  "flagrant  and  indefen- 
sible violation  of  the  rights  of  many  for  the  benefit  of 
a  few " ;  that  grants  of  exclusive  privileges  of  this  kind 
were  "opposed  to  the  whole  theory  of  free  government 
and  it  requires  no  aid  from  any  bill  of  rights  to  render 
them  void",  and  that  a  right  of  a  citizen  had  been  vio- 

i'*The  privileges  of  American  citizenship  on  American  soil,  as  distinguished 
from  those  of  State  citizenship,  were  hardly  thought  of  until  the  Civil  War  had 
done  its  nationalizing  work.  They  would  have  remained  largely  a  matter  of  sen- 
timent then,  had  it  not  been  for  the  new  conditions  and  controversies  precipitated 
by  the  enfranchisement  of  the  colored  race.  By  fundamental  alterations  in  our 
Constitution,  they  have  acquired  a  new  dignity  and  power;  but  their  ultimate 
range  and  scope  have  been  left  for  the  future  to  determine,  by  the  slow  growth  of 
National  institutions."  The  Citizen*  of  the  United  SiaAee,  by  Simeon  £.  Baldwin, 
Yale  Law  Joum,  (1898),  II,  88;  MaxtpeU  v.  Daw  (1900),  176  U.  S.  581. 


THE  SLAUGHTERHOUSE  CASES  261 

lated  which  was  entitled  to  protection  under  the  Amend- 
ment. "By  the  Constitution,  as  it  stood  before  the 
War/*  said  Judge  Swayne,  "ample  protection  was  given 
against  oppression  by  the  Union,  but  little  was  given 
against  wrong  and  oppression  by  the  States.  That 
want  was  intended  to  be  supplied  by  this  Amendment. 
Against  the  former  this  Court  had  been  called  upon 
more  than  once  to  interpose.  Authority  of  the  same 
amplitude  was  intended  to  be  conferred  as  to  the  latter. 
But  this  arm  of  our  jurisdiction  is,  in  these  cases, 
stricken  down  by  the  judgment  just  given."' 

"The  decision  was  given  to  an  almost  empty  Court- 
room and  Bar,*'  wrote  a  Washington  correspondent,  the 
next  day,  "and  has  as  yet  attracted  little  attention  out- 
side of  legal  circles,  although  the  Judges  of  the  Court  re- 
gard the  case  as  the  most  important  which  has  been  be- 
fore them  since  the  Dred  Scott  decision.  The  opinion  of 
Mr.  Justice  Miller  is  held  by  the  Bar  to  be  exceedingly 
able,  while  passages  in  it  were  regarded  as  striking 
examples  of  judicial  eloquence.'*  ^  It  was  but  a  short 
time,  however,  before  the  Bar  and  the  general  public 
began  to  realize  the  immense  scope  of  the  decision.  To 
the  Radical  Reconstructionists  it  came  as  a  tremendous 
shock  and  disappointment ;  for  their  intent  in  framing 
the  language  of  the  Amendment  was  directly  contrary 
to  the  narrow  construction  now  placed  upon  it  by  the 
Court.  Though  the  country  at  large  may  not  have 
understood,  at  the  time  of  the  passage  of  the  Fourteenth 
Amendment,  the  full  purpose  of  its  very  general  phrase- 
ology, the  Radical  leaders  in  Congress  had  had  very 
definite  ideas  in  drafting  and  submitting  it  to  the  people. 
Not  only  did  they  desire  punishment  of  the  South  (to 
be  achieved  through  the  second,  third  and  fourth  sec- 
tions, which  were  easily  understood  by  the  people)  and 

^  BoiUm  Daily  Adoertiaer,  April  16, 1878. 


262  THE  SUPREME  COURT 

the  elevation  of  the  negro  to  the  plane  of  equality  with 
the  white  man  (which  was  to  be  achieved  by  section  five, 
as  well  as  by  the  Thirteenth  and  Fifteenth  Amendments), 
but  they  also  intended,  by  section  one,  to  centralize  in 
the  hands  of  the  Federal  Government  large  powers, 
hitherto  exercised  by  the  States.  The  interval  between 
the  adoption  of  the  Thirteenth  Amendment  and  the 
proposal  of  the  Fourteenth  had  been  marked  by  legis- 
lation in  the  Southern  States,  designed,  under  the  guise 
of  repressing  vagrancy  and  regulating  contracts  of  em- 
ployment, to  keep  the  negroes  in  a  state  of  subjection ; 
and  in  order  to  gain  control  over  the  negro  situation  in 
the  South,  wide  extension  of  Federal  power,  and  with- 
drawal of  power  previously  vested  in  the  States,  were 
deemed  necessary.  As  has  been  said :  "They  desired 
to  nationalize  all  civil  rights;  to  make  the  Federal 
power  supreme ;  and  to  bring  the  private  life  of  every 
citizen  directly  under  the  eye  of  Congress.  This  inten- 
tion of  the  Radicals,  though  too  much  involved  for  the 
people  in  general  to  comprehend,  was  quite  generally 
understood  by  the  leading  editors  in  the  North  and  in 
the  South  and  by  the  party  leaders  on  both  sides.'*  ^ 
The  feelings  of  those  Republicans  who  had  taken  part 
in  framing  the  Amendment  were  clearly  shown  by  their 
conunents  on  the  decision.  Senator  Greorge  S.  Boutwell, 
who  had  been  a  member  of  the  Committee  on  Recon- 

^  The  Fourteenth  Amendmeni  and  the  States  (1912),  by  Charies  Wallace  Collins, 
45.  Prof.  John  W.  Burgess  said  in  Political  Science  and  ConstUvtional  Law  (1890), 
I,  825 :  "They  intended  to  occupy  the  whole  ground,  and  thought  they  had  done 
so.  The  opposition  charged  that  these  Amendments  would  nationalize  the  whole 
sphere  of  civil  liberty;  the  majority  accepted  the  view;  and  the  legislation  of 
Congress  for  their  elaboration  and  enforcement  proceeded  upon  that  view.*'  See 
39th  Cong,,  1st  Sees,,  253(H2542.  James  G.  Blaine  in  his  Twenty  Years  of  Congress 
(1884-1886),  II,  419,  said  that  by  the  decbion  "the  Amendment  has  been  deprived, 
in  fact,  of  the  power  which  Congress  intended  to  impart  to  it." 

See  The  Adoption  of  the  Fourteenth  Amendment^  by  Horace  Edgar  Flack  (1908) ; 
The  Fourteenth  Amendment  (1898),  by  William  D.  Guthrie ;  Contemporary  Ameri- 
can History  (1914),  by  Charles  A.  Beard ;  The  Fourteenth  Amendment  and  the  Slaugh- 
terhouse Case,  by  William  L.  RoyalU  Southern  Law  Rev,  (1879),  n.  b.,  IV,  558. 


THE  SLAUGHTERHOUSE  CASES  268 

struction,  said  that  the  Court  had  ^' erred  in  holding  that 
there  were  two  classes  of  rights,  National  and  State/' 
Senator  Timothy  O.  Howe  declared  that  "the  American 
people  would  say,  as  they  had  said  about  the  Dred  Scott 
decision,  that  it  was  not  law  and  could  not  be  law." 
Senator  Roscoe  Conkling  stated  that  the  Drafting 
Conmiittee  had  intended  to  include  within  the  scope  of 
the  Amendment,  not  only  the  negro  struggling  upward 
from  bondage,  but  also  corporations  and  business  in- 
terests struggling  for  emancipation  from  legislative  in- 
terference. Senator  George  F.  Edmimds,  who  also 
took  part  in  framing  the  Amendment,  said  later: 
"There  is  no  word  in  it  that  did  not  imdergo  the  com- 
pletest  scrutiny.  There  is  no  word  in  it  that  was  not 
scanned,  and  intended  to  mean  the  full  and  beneficial 
thing  it  seems  to  mean.  There  was  no  discussion 
omitted ;  there  was  no  conceivable  posture  of  affairs  to 
the  people  who  had  it  in  hand  which  was  not  considered. 
And  yet  it  was  found  upon  the  first  attempt  to  enforce 
its  first  clause  .  .  .  that  the  Court,  by  a  division  of  five 
to  four,  radically  differed  in  respect  both  to  the  intention 
of  the  f  ramers  and  the  construction  of  the  language  used 
by  them." 

Those  Radical  Republicans,  who  opposed  the  deci- 
sion from  a  partisan  standpoint,  were  joined  in  their 
denunciation  by  a  large  number  of  Democrats,  more 
especially  in  the  West,  who,  though  sympathizing  with 
the  views  of  the  Court  in  regard  to  the  relations  of  the 
Nation  and  the  States,  nevertheless  deplored  the  de- 
cision from  an  economic  and  social  standpoint,  in  the 
support  which  it  gave  to  State-created  monopolies. 
Tjrpical  of  this  form  of  critic  was  the  Cincinnati  En- 
quireVf  which  feared  that  the  " degeneracy  of  the  Court" 
was  displayed  by  this  decision  upholding  "a  law  passed 
by  a  so-called  Legislature,  elected  by  the  bayonet  and 


264  THE  SUPREME  COURT 

through  the  agency  of  the  most  degraded  and  ignorant 
portion  of  the  population  ...  to  reward  particular 
favorites.  .  .  .  We  are  astonished  at  this  decision  of  the 
Court  for  which  hitherto  we  have  had  the  greatest  re- 
spect. We  could  not  have  believed  it  possible  that  they 
could  have  had  any  hesitancy  as  to  their  duty.  ...  It 
gives  a  legal  sanction  to  the  consummation  of  an  outrage 
on  individual  rights  that  is  almost  unparalleled.  It 
seems  to  us  that,  in  view  of  the  alarming  precedent 
which  has  been  set,  the  Court  cannot  maintain  its 
opinion,  but  must  recede  from  it.  It  is  truly  the  monop- 
olists'  decision.'*  It  pointed  out  that  the  Fourteenth 
Amendment,  originally  designed  for  oppressing  the 
Southern  people,  was  now,  as  construed  by  the  Court, 
only  shelter  for  fraud  and  outrage,  and  not  only  "  power- 
less for  good,  but  powerful  to  harm."  The  opinion,  it 
said,  "  will  create  a  prejudice  against  the  continued  exist- 
ence of  a  tribunal  that  has  such  little  regard  for  the 
interests  of  the  public.  Not  since  the  war,  nor  during 
it,  was  there  so  dangerous  a  precedent  established  as 
by  this  decision,  which  gives  to  a  political  body  the 
authority  to  create  monopolies  of  a  few  persons  to 
tyrannize  over  and  rob  the  many,  forever."  ^  The 
Southern  Law  Review  also  assailed  the  Court  for  sus- 
taining a  "menacing  monopoly  created  by  a  corrupt 
and  ignorant  carpet-bag  State  Government." 

Opinions  of  this  nature,  however,  were  not  generally 
shared ;  for  it  was  seen  by  most  of  the  press  and  by  the 
Bar  that  the  decision  did  not,  in  reality,  sanction  mo- 
nopolies, but  simply  established  the  proposition  that  the 
subject  of  local  monopoly  was  for  the  States  to  deal  with 
and  not  for  the  Federal  Government ;  ^  and  this  was  un- 

^  Cincinnati  Enquirer,  April  16,  17,  1878 ;  The  Slaughterhouee  Cases,  Southern 
Law  Res.  (1874),  m ;   The  Fourteenth  Amendment,  ibid.  (1878),  m.  b.,  IV. 

*  The  Chicago  Tribune,  April  18, 19, 1873,  said :  "The  dedaion  of  the  Court,  while 
it  indiiectly  suatains  this  monopoly,  does  not  turn  upon  this  point.    The  quea- 


THE  SLAUGHTERHOUSE  CASES  266 

doubtedly  in  accord  with  the  temper  of  the  times.  The 
country  was  tiring  of  the  extensions,  and,  in  some  cir- 
cmnstances,  usurpations  of  Federal  power  which  had 
been  the  natural  outcome  of  war  and  of  war  necessities. 
The  decision  marked  the  end  of  the  great  centralizing, 
Nationalistic  movement,  and  the  beginning  of  a  reaction 
towards  the  enhancement  of  the  powers  of  the  States. 
"It  is  important,"  said  the  Nation^  "as  showing  that 
the  Court  is  recovering  from  the  war  fever  and  is  getting 
ready  to  abandon  sentimental  canons  of  construction."  ^ 
"No  one  for  a  moment  can  suppose  that  the  Amend- 
ments were  ratified  with  any  such  revolutionary  pur- 
pose," said  the  Independent;  and  the  New  York  World 
said  that  the  gist  of  the  question  before  the  Court  was 
"whether  those  Amendments  had  changed  the  previous 
relations  of  the  States  to  the  Federal  Government. 
The  Court  very  properly  decided  that  they  had  not. 
.  .  .  Nothing  is  clearer  than  that  the  new  Amendments, 
fairly  interpreted,  leave  all  the  broader  relations  be- 
tween the  States  and  the  Federal  Government  un- 
changed and  imtouched.  .  .  .  The  joint  design  of  them 
all  was  to  bleach  the  negro  into  a  political  white  man, 
to  raise  the  African  to  the  level  of  the  Caucasian  in  his 
civil  and  poUtical  rights.  .  .  .  Such  suits  would  never 
have  been  thought  of,  if  certain  shallow  people  had  not 
gone  crazy  about  the  scope  of  the  Fourteenth  Amend- 
ment. There  is  no  limit  to  the  folUes  which  have 
clutched    at    that    Amendment    for    support.     The 

tioD  of  monopoly  was  not  before  the  Court  at  all,  as  is  assumed  by  the  Mx990uri 
DemocfcA  and  some  other  journals." 

1  NcAion,  April  24,  1878;  Independent,  May  22,  1878;  New  York  World,  April 
16,  1878;  New  York  Timee,  April  16,  1878;  Boston  Daily  AdveHiaer,  April  17, 
1878;  Philadelphia  Prese,  April  17,  1873;  Chicago  Tribune,  April  18,  19,  1878. 
William  L.  Royall  in  Southern  Law  Review  (1878),  n.  s.,  IV,  said:  "The  truth  is 
that  when  this  Amendment  came  before  the  Court  for  construction,  the  minds  of 
patriotic  men  were  filled  with  alarm  at  the  centralizing  tendency  of  the  government 
.  .  .  and  those  who  wish  well  to  their  country  looked  with  sorrowing  eyes  upon  the 
prospect  that  the  ancient  landmarks  of  the  States  were  to  yield  before  the  advanc- 
ing strides  of  our  imperial  despotism.*' 


266  THE  SUPREME  COURT 

women's-rights  people  have  claimed  that  it  ordains 
female  suffrage.  A  Chicago  she-attorney  claims  'that 
it  admits  her  to  the  Bar/  Certain  New  Orleans 
butchers  assert  that  it  gives  them  the  right  to  land  and 
slaughter  animals  in  any  part  of  that  city  they  please. 
But  the  Supreme  Court  has  decided,  really,  but  too  fal- 
teringly,  that  its  only  legal  effect  is  to  make  full-fledged 
citizens  of  negroes,  but  leaving  the  government  of  the 
country  in  all  other  respects  precisely  the  same  as  if  the 
Constitution  had  stood  as  first  adopted,  and  no  negro 
had  ever  left  his  native  Africa.  .  .  .  That  the  Court  did 
not  strike  a  bolder  note  in  declaring  this  sound  doctrine 
is  to  be  accounted  for  by  their  consciousness  that  they 
were  running  counter  to  the  impetuous  hostihty  of  the 
Repubhcan  party  to  the  constitutional  rights  of  the 
States."  The  New  York  Times  said  that  it  was  "cal- 
culated to  throw  the  immense  moral  force  of  the  Court 
on  the  side  of  rational  and  careful  interpretation  of  the 
rights  of  the  States  and  those  of  the  Union.  It  is  cal- 
culated to  maintain,  and  to  add  to  the  respect  felt  for, 
the  Court,  as  being  at  once  scrupulous  in  its  regard  for 
the  Constitution  and  unambitious  of  extending  its  own 
jurisdiction.  It  is  also  a  severe,  and  we  might  almost 
hope  a  fatal,  blow  to  that  school  of  constitutional  lawyers 
who  have  been  engaged,  ever  since  the  adoption  of  the 
Fourteenth  Amendment,  in  inventing  impossible  con- 
sequences for  that  addition  to  the  Constitution."  The 
New  York  Tribune  termed  it  "a  most  important  de- 
cision", and  said  that  it  "set  up  a  barrier  against  new 
attempts  to  take  to  the  National  Government  the  ad- 
justment of  questions  legitimately  belonging  to  State 
tribunals  and  Legislatures."  The  Philadelpkia  Press 
said  that  it  would  "clear  away  a  tolerably  dense  legal 
fog" ;  and  the  Boston  Advertiser  said  that  a  contrary  de- 
cision "would  constitute  this  Court  a  perpetual  censor 


THE  SLAUGHTERHOUSE  CASES  287 

upon  all  State  legislation  concerning  the  rights  of  its 
citizens.  A  doctrine  so  subversive  of  ancient  and  fun- 
damental principles  cannot  be  set  up,  unless  by  language 
too  plain  to  be  capable  of  any  other  interpretation." 
The  Chicago  Tribune  said  that  the  decision  plainly  in*- 
dicated  two  things:  "That  the  Court  will  not  con- 
strue the  Constitutional  Amendments  as  upsetting 
State  Governments ;  and  that  the  people  of  every  State 
must  look  to  their  own  protection  against  monopolies, 
when  they  frame  their  Constitution  and  elect  their  Leg- 
islatures, and  not  come  to  the  Courts  afterwards  and 
ask  them  to  undo  what  the  Legislative  authority  has 
done."  Of  the  soundness  of  the  decision,  it  said  that 
there  could  be  no  doubt :  "The  Constitutional  Amend- 
ments, beyond  their  estoppel  of  the  States  from  en- 
slaving the  negro  or  depriving  him  of  the  privilege  of  the 
elective  franchise  and  the  other  rights  of  white  men, 
cannot  interfere  with  State-Rights.  Any  other  inter- 
pretation of  these  Amendments  would  be  glaringly  in 
conflict  with  historical  facts.  .  .  .  The  Federal  Gov- 
ernment thus  becomes  absolute  in  its  jurisdiction,  and 
State  Governments  only  exist  or  exercise  their  powers 
by  its  suffrance.  .  .  .  The  principal  value  of  this  de- 
cision grows  out  of  the  fact  that  it  clearly  and  unmis- 
takably defines  the  province  of  the  Constitutional 
Amendments,  and  will  hereafter  put  a  quietus  upon  the 
thousand  and  one  follies  seeking  to  be  legalized  by  hang- 
ing on  to  the  Fourteenth  Amendment.  .  .  .  The  de- 
cision has  long  been  needed,  as  a  check  upon  the  central- 
izing tendencies  of  the  Government  and  upon  the  de- 
termination of  the  Administration  to  enforce  its  policy 
and  to  maintain  its  power,  even  at  the  expense  of  the 
constitutional  prerogatives  of  the  States.  The  Su- 
preme Court  has  not  spoken  a  moment  too  soon  or  any 
too  boldly  on  this  subject." 


f 


268  THE  SUPREME  COURT 

Sentiments  like  these,  widely  expressed  in  the  North, 
the  East  and  the  West,  afford  an  interesting  illustration 
of  how  far  the  pendulum  had  swung  away  from  central- 
ization and  towards  the  most  extreme  State-Rights 
views  held  by  the  Democratic  Party  before  the  war. 

An  opinion  similar  to  that  of  the  daily  press  was  also 
held  by  the  American  Law  Review ^  which  said :  '"In  its 
results  it  is  of  untold  importance  to  the  future  relations 
of  the  different  members  of  our  complex  system  with 
the  whole.  The  line  which  separates  the  Federal  Gov- 
ernment from  the  States,  and  which  of  late  years  has 
trenched  on  what  are  called  the  reserved  rights  of  the 
latter,  was  never  so  precisely  defined  as  to  make  trite 
or  tiresome  new  descriptions  of  its  position ;  and  the 
interpretation  of  the  Thirteenth,  Fourteenth,  and  Fif- 
teenth Amendments  to  the  Constitution  of  the  United 
States,  which  was  called  for  by  attempts  to  apply  their 
letter,  if  not  their  spirit,  to  new  states  of  fact  not  con- 
templated by  the  Congress  nor  the  Legislatures  that 
made  them,  is  the  latest  and  one  of  the  most  important 
acts  of  government,  growing  out  of  the  war.  It  is  note- 
worthy that,  while  the  Executive  Department  keeps 
Casey  in  New  Orleans,  and  sends  its  soldiers  to  regulate 
the  internal  politics  of  Louisiana,  the  Judicial  Depart- 
ment remits  to  the  people  of  that  State,  to  its  Courts 
and  Legislature,  the  custody  of  the  privileges  and  im- 
munities of  its  citizens."  ^ 

The  development  of  the  law  since  the  date  of  this 
great  decision  has,  on  the  whole,  justified  its  wisdom, 
and  Judge  Miller's  opinion  has  justly  been  regarded  as 
one  of  the  glorious  landmarks  of  American  law.  The 
defeated  counsel,  John  A.  Campbell,  in  after  years, 
admitted  that  it  was  "probably  best  for  the  country 
that  the  case  so  turned  out" ;  and  another  Southerner, 

^  American  Law  Rwiew  (July,  1878),  VII,  782. 


THE  SLAUGHTERHOUSE  CASES  269 

John  S.  Wise,  said  at  the  celebration  of  the  Centennial 
of  the  Court :  "That  decision  did  more  than  all  the 
battles  of  the  Union  to  bring  order  out  of  chaos.  .  .  . 
When  war  had  ceased,  when  blood  was  stanched, 
when  the  victor  stood  above  his  vanquished  foe 
with  drawn  sword,  the  Supreme  Court  of  this  Na- 
tion planted  its  foot  and  said:  This  victory  is 
not  an  annihilation  of  State  Sovereignty  but  a  just 
interpretation  of  Federal  power. '*  Finally,  the  words 
of  Judge  Moody,  in  1908,  may  well  be  quoted :  "Crit- 
icism of  the  case  has  never  entirely  ceased,  nor  has  it 
ever  received  universal  assent  by  members  of  this  Court. 
Undoubtedly,  it  gave  much  less  eflFect  to  the  Fourteenth 
Amendment  than  some  of  the  public  men  active  in 
framing  it  intended,  and  disappointed  many  others. 
On  the  other  hand,  if  the  views  of  the  minority  had  pre- 
vailed, it  is  easy  to  see  how  far  the  authority  and  in- 
dependence of  the  States  would  have  been  diminished, 
by  subjecting  all  their  legislative  and  judicial  acts  to 
correction  by  the  legislative  and  review  by  the  judicial 
branch  of  the  National  Government."  ^ 

Had  the  case  been  decided  otherwise,  the  States  would 
have  largely  lost  their  autonomy  and  become,  as  po- 
htical  entities,  only  of  historical  interest.  If  every  civil 
right  possessed  by  a  citizen  of  a  State  was  to  receive  the 
protection  of  the  National  Judiciary,  and  if  every  case 
involving  such  a  right  was  to  be  subject  to  its  review, 
the  States  would  be  placed  in  a  hopelessly  subordinate 
position ;  and  the  ultimate  authority  over  the  citizens 
of  the  State  would  rest  with  the  National  Government. 
The  boundary  lines  between  the  States  and  the  National 
Government  would  be  practically  abohshed,  and  the 
rights  of  the  citizens  of  each  State  would  be  irrevocably 

^  Twining  ▼.  New  Jersey  (1908),  211  U.  S.  78;  see  also  Samud  Freeman  Miller, 
by  Horace  Stevens,  Qreat  American  Lawyers  (1908),  VI. 


270  THE  SUPREME  COURT 

fixed  as  of  the  date  of  the  Fourteenth  Amendment,  with- 
out power  in  the  State  to  modify  them,  and  with  power 
in  the  Supreme  Court  of  the  Nation  to  review  any  State 
statute  asserted  to  be  in  violation  of  such  rights,  even 
if  such  statute  aflFected  solely  a  matter  of  State  policy. 
Inasmuch  as  about  eight  hundred  cases  have  been  be- 
fore the  Court  since  1873,  involving  State  statutes 
under  the  due  process  clause  of  the  Fourteenth  Amend- 
ment, it  is  impossible  to  conceive  of  the  amount  of 
litigation  on  which  that  Court  would  have  been  called 
to  pass,  if  State  legislation  involving  every  possible 
civil  right  of  a  State  citizen  could  also  have  been  brought 
before  it  under  the  privilege  and  immunity  clause.^ 

Though  the  case  presented  two  other  questions  aris- 
ing under  the  Fourteenth  Amendment  —  whether  the 
State  legislation  deprived  the  plaintiffs  of  life,  liberty 
and  property  without  due  process,  and  whether  it  denied 
them  equal  protection  of  the  laws, — the  Court's  opinion 
gave  to  these  points  very  slight  attention.  As  to  the 
first  point,  the  Court  simply  said :  ^'The  argument  has 
not  been  much  pressed.  .  .  .  It  is  sufficient  to  say  that 
under  no  construction  of  that  provision  that  we  have 

^  "Never  was  the  Court  truer  to  itself,  truer  to  the  Constitution."  Politics  and 
the  United  States  Supreme  Court,  by  Walter  D.  Coles,  Amer,  Law  Rev,  (1893), 
XXVII. 

On  the  other  hand,  the  opposite  view  has  been  expressed  by  Prof.  John  W.  Bur- 
gess in  PdiHeal  Science  and  Constiiutional  Law,  I,  22S-2S0.  Writing  in  1890,  he 
termed  it  "an  ominously  important  decision.  .  .  .  Coming  at  the  time  when  the 
reaction  had  begun  to  set  in  against  the  pronounced  Nationalism  of  the  preceding 
decade,  it  partook  of  the  same,  and  set  the  direction  towards  the  restoration  of  that 
particularism  in  the  domain  of  civil  liberty,  from  which  we  su£fered  so  severely  be- 
fore 1861,  and  from  which  we  are  again  suffering  now.  From  whatever  point  of 
view,  I  regard  the  decision  .  .  .  from  the  historical,  political,  or  juristic,  it  appears 
to  me  entirely  erroneous.  It  appears  to  me  to  have  thrown  away  the  great  gain 
in  the  domain  of  civil  liberty  won  by  the  terrible  exertions  of  the  nation  in  the 
appeal  to  arms.  I  have  perfect  confidence  that  the  day  will  come,  when  it  will  be 
seen  to  be  intensely  reactionary  and  will  be  overturned."  See  also  Judicial  Con' 
stUuiional  Amendment,  by  Frederic  R.  Coudert,  Yale  Law  Joum,  (1904),  XIII ; 
and  see  Everett  V.  Abbott,  who  says  in  his  Justice  and  the  Modem  Law  (1913),  that 
the  Slaughterhouse  Case  was  "obviously  erroneous,  and  we  may  safely  conclude  that 
it  would  not  be  rendered  today." 


THE  SLAUGHTERHOUSE  CASES  271 

ever  seen,  or  any  that  we  deem  admissible,  can  the  re- 
straint imposed  by  the  State  of  Louisiana  upon  the 
exercise  of  their  trade  by  the  butchers  of  New  Orleans 
be  held  to  be  a  deprivation  of  property  within  the  mean- 
ing of  that  provision."  In  view  of  later  decisions  of  the 
Court  relative  to  the  extent  of  the  State  police  power 
over  liberty  and  property,  it  may  well  be  doubted 
whether  the  decision  might  not  have  been  otherwise, 
had  the  case  been  argued  more  fully  on  the  point  of  due 
process  and  had  the  facts  been  more  clearly  stressed; 
for  one  of  the  dissenting  Judges,  Field,  always  insisted 
in  subsequent  cases,  that  the  question  whether  the  stat- 
ute involved  had  any  real  relation  whatsoever  to  the 
police  power  had  not  been  properly  presented  or  con- 
sidered. As  to  the  other  point  argued  in  the  case,  the 
Court  held  that  the  Amendment  grew  out  of  the  negro 
question  and  was  to  be  interpreted  as  dealing  almost 
solely  with  it.  "We  doubt  very  much  whether  any 
action  of  a  State  not  directed  by  way  of  discrimination 
against  the  negroes  as  a  class,  or  on  account  of  their 
race,  will  ever  be  held  to  come  within  the  purview  of 
this  provision,"  said  Judge  Miller.  It  is  interesting  to 
note  that  this  prediction  has  been  utterly  falsified; 
since  the  protection  granted  by  this  clause  of  the 
Amendment  has  been  sought  by  litigants  almost  wholly 
in  cases  involving  social  and  economic  State  legislation, 
and  very  seldom  in  cases  presenting  discrimination 
against  negroes. 

A  particularly  fortunate  circumstance  in  the  decision 
of  this  case  was  the  fact  that  no  criticism  could  be  based 
on  the  political  or  sectional  attitude  of  the  Judges. 
For  the  Democrat,  Judge  Field,  and  the  Republican, 
Chief  Justice  Chase,  both  of  whom  were  of  the  moderate 
State-Rights  school,  were  joined  by  the  pronouncedly 
Nationalistic  Republican  Judges,  Bradley  and  Swayne, 


272  THE  SUPREME  COURT 

in  delivering  the  minority  opinion  directed  against  the 
power  of  the  State ;  while  in  favor  of  the  State  authority 
were  found  three  Republicans,  Judges  Miller,  Strong 
and  Hunt,  Judge  Clifford,  a  Democrat,  and  Judge 
Davis  whose  political  views  were  tending  towards  the 
Democracy. 

A  practical  application  of  the  doctrine  of  the  Shughter^ 
house  Cases  was  made  in  another  case  decided  at  the 
same  time  at  this  Term,  Bradwell  v.  The  State,  16  Wall. 
130,  in  which  a  refusal  of  the  Supreme  Court  of  H- 
linois  to  license  a  woman  to  practice  law  was  held  not 
to  violate  the  Fourteenth  Amendment,  inasmuch  as 
the  right  to  practice  law  in  a  State  Court  was  not  a 
privilege  or  immunity  of  a  citizen  of  the  United  States 
as  that  term  was  construed  by  the  Court.  Judge  Brad- 
ley (Swayne  and  Field  concurring)  agreed  with  the  re- 
sult but  not  with  the  grounds  of  the  decision,  saying 
(in  language  probably  unacceptable  to  the  women  suf- 
fragists) that  every  citizen  was  not  qualified  for  every 
calling,  and  hence  that  "in  view  of  the  peculiar  char- 
acteristics, destiny  and  mission  of  women,  it  is  within 
the  province  of  the  Legislature  to  ordain  what  offices, 
positions  and  callings  shall  be  filled  and  discharged  by 
men,  and  shall  receive  the  benefit  of  those  energies  and 
responsibilities,  and  that  decision  and  firnmess  which 
are  presumed  to  predominate  in  the  sterner  sex."  ^ 

^  The  Nation  aaid,  April  24,  187S:  "It  is  a  rather  ludicrous  illustration  of  the 
character  of  the  woman  movement  that  a  prominent  female  agitator  should  have 
sdzed  the  opportunity  to  prove  the  fitness  of  her  sex  for  professional  life,  by  taking 
for  her  first  important  case  one  which  she  must  have  known  the  Court  would  de- 
cide against  her,  unless  she  supposed  that  they  were  likely  to  be  influenced  by  per* 
sonal  solicitation  and  clamor,  or  else  that  they  were  all  gone  crazy."  The  Boston 
Daily  Advertiser,  April  16,  1873,  said :  "Judge  Bradley's  opinion  seemed  to  cause 
no  little  amusement  upon  the  Bench  and  on  the  Bar."  See  also  Death  of  Myra 
Bradwell,  Amer.  Law  Rev.  (1896),  XXX,  254. 

In  1877,  the  Supreme  Court  of  the  United  States  denied  the  application  of  a 
woman  lawyer,  Mrs.  Belva  A.  Lockwood,  for  admission  to  practice  as  an  Attorney  in 
that  Court,  the  Chief  Justice  saying,  Nov.  6,  that  he  had  been  instructed  by  the 
Court  to  announce  the  following  decision :  **  By  the  uniform  practice  of  the  Court, 


THE  SLAUGHTERHOUSE  CASES  278 

Two  weeks  after  participating  in  these  momentous 
decisions,  and  on  the  last  day  of  the  Term,  Chief  Justice 
Chase  delivered  an  opinion  in  another  case,  Osborne  v. 
Mobile^  16  Wall.  479,  which  again  marked  the  tendency 
towards  a  reaction  in  favor  of  the  State  Sovereignty 
now  apparent  in  the  Court ;  and  in  upholding  a  State 
Ucense  tax  on  express  companies  doing  business  partly 
outside  the  State,  the  Chief  Justice  said  that,  while  it 
was  always  difficult  to  draw  the  line  as  to  unconsti- 
tutionahty,  '^it  is  as  important  to  leave  the  rightful 
powers  of  the  State  in  respect  to  taxation  unimpaired 
as  to  maintain  the  powers  of  the  Federal  Government 
in  their  integrity ''  —  a  sentiment  which  should  have 
gratified  the  strongest  behever  in  the  upholding  of 
State-Rights  by  the  Court.^ 

Ten  days  later.  Chase  died  suddenly,  on  May  7, 1873. 
For  over  two  years,  he  had  been  in  feeble  health,  due 
to  a  paralytic  shock.  He  had  served  for  eight  years, 
through  a  notable  period  filled  with  political  passions, 
in  which  only  the  most  determined  and  rugged  honesty 
of  mind  and  purpose  could  have  held  the  Court  to  the 
courageous  course  which  it  had  pursued.  **  The  nine 
annual  Terms  through  which  he  has  presided  constitute 
a  judicial  period  of  little  less  importance  than  that  pe- 
riod of  constitutional  interpretation  which  it  was  the 

from  its  organisation  to  the  present  time,  and  by  the  lair  construction  of  its  rales, 
none  but  men  are  admitted  to  practice  before  it  as  attorneys  and  counsellors.  This 
IS  in  accordance  with  immemorial  usage  in  England,  and  the  law  and  practice  in  all 
the  States  until  within  a  recent  period ;  and  the  Court  does  not  feel  called  upon  to 
make  a  change,  until  such  a  change  is  required  by  statute,  or  a  more  extended 
practice  in  the  highest  Courts  of  the  States."  The  result  of  this  was  the  enact- 
ment by  Congress  of  the  Act  of  Feb.  15, 1879,  making  women  eligible  for  admission 
to  practice.    See  Amer,  Law  Rev.  (1877),  XI,  S67. 

^ George  W.  Julian  m  his  PolUical  ReeoUeetiona  (1884),  said:  "After  the  Presi- 
dential election  (1872),  I  went  to  Washington  where  I  met  Chief  Justice  Chase  in 
the  Supreme  Court  and  accepted  an  invitation  to  dine  with  him.  He  looked  so 
wasted  and  prematurely  old,  that  I  scarcely  knew  him.  He  was  very  genial,  how- 
ever, and  our  long  political  talk  was  exceedingly  enjoyable.  It  seemed  to  afford 
him  much  satisfaction  to  show  me  a  recently  reported  dissenting  (pinion  of  his»  in 
which  he  reasserted  his  favorite  principle  of  States'-rights." 


«74  THE  SUPREME  COURT 

fortune  of  Chief  Justice  Marshall  to  fill,"  said  the  Na- 
turn,  in  a  very  just  summary  of  his  work.  "  For  many 
years  to  come,  the  decisions  of  these  nine  Terms  will  be 
referred  to  by  lawyers,  legislators  and  constitutional 
students  more  than  any  others.  In  them,  the  late 
Chief  Justice  will  always  appear  prominent  and  never 
far  from  right.  He  brought  to  the  Court  no  store  of 
legal  learning,  but  he  brought  comprehensive  views, 
considerable  power  of  generalization  and  a  just  sense  of 
constitutional  rights  and  judicial  responsibility  .  .  . 
firm,  liberal,  and  just ;  and  his  judicial  services  will  be 
more  highly  esteemed  when  it  is  more  clearly  perceived 
that  they  uniformly  tend  to  the  maintenance  of  those 
principles  which  are  the  basis  of  National  integrity, 
personal  or  political.**  "Mr.  Chase  was  an  ambitious 
man ;  he  wished  to  please  people  and  to  gain  their  sup- 
port, but  he  would  not  sacrifice  to  this  object  one  jot  of 
his  convictions,'*  said  the  Independent.^ 

At  the  opening  of  the  Court  on  October  23,  1873, 
resolutions  of  the  Bar  were  presented,  to  which  Judge 
CliflFord  made  a  noble  response.  In  view  of  the  many 
political  attacks  which  had  been  made  upon  Chase, 
CliflFord  *s  comment  is  of  peculiar  interest :  "  From  the 
first  moment  he  drew  the  judicial  robes  around  him,  he 
viewed  all  questions  submitted  to  him  as  a  Judge  in  the 
calm  atmosphere  of  the  Bench,  and  with  the  deliberate 
consideration  of  one  who  feels  that  he  is  determining 
issues  for  the  remote  and  unknown  future  of  a  great 
people.'*  He  spoke  especially  of  the  "candor  and  self 
control*'  which  enabled  him,  over  the  "pride  of  opin- 
ion**, to  change  his  views  on  the  subject  of  legal  tender. 

It  was  generally  supposed  that  Chase*s  successor 
would  be  chosen  from  six  men,  Benjamin  R.  Curtis, 

^  Nation,  May  15,  187S;  Independent,  May  15,  29,  1873.    See  also  CkUf  Jwtiee 
Chtue,  by  Isaac  F.  Bedfidd,  North  Amer.  Rev.  (April  1876),  CXXII. 


THE  SLAUGHTERHOUSE  CASES  276 

William  M.  Evarts,  E.  Rockwood  Hoar,  Lyman  Ttum- 
buU,  William  B.  Groesbeck  or  Judge  Miller.  The  lat- 
ter's  appointment  would  have  especially  pleased  the 
country ;  for  not  only  did  he  possess  one  of  the  ablest 
judicial  minds,  but  his  breadth  of  view  and  sturdy  com- 
mon sense  had  particularly  commended  him.^  Many 
papers,  like  the  Chicago  Tribune,  urged  the  President 
to  appoint  such  a  man  as  Evarts,  to  select  a  jurist  from 
the  ablest  and  most  distinguished  lawyers,  and  ^^to  dis- 
regard paltry  considerations  of  locality  or  party  serv- 
ice." President  Grant,  however,  after  a  delay  of  six 
months,  finally  offered  the  position  to  his  close  personal 
friend  and  supporter,  Roscoe  Conkling,  the  Senator 
from  New  York.  Writing  to  him,  November  8,  1873, 
he  said :  "When  the  Chief  Justiceship  became  vacant, 
I  immediately  looked  with  anxiety  to  some  one  whose 
appointment  would  be  recognized  as  entirely  fitting  and 
acceptable  to  the  country  at  large.  My  own  prefer- 
ence went  to  you  at  once."  Conkling  was  hardly  fitted 
for  the  position,  either  by  the  extent  of  his  practice  or 
the  eminence  of  his  legal  acquirements ;  and  probably 
wisely  for  his  own  reputation,  he  declined  the  honor.* 
Thereupon,  December  1,  Grant  nominated  his  Attorney- 
General,  George  H.  Williams  of  Oregon.  The  nomi- 
nation surprised  not  only  the  whole  Bar,  but  the  whole 
country;  and  the  American  Law  Review  expressed 
the  general  feeling  in  a  temperate  article  as  follows: 
"Mr.  Williams  has,  within  a  few  years,  been  called  to 

^  Chicago  Tribtsne,  May  8,  16,  1873;  Amer.  Law  Rev.  (1873),  VII,  749,  VIII, 
159;  Jfu2«p«ni«nt,  May  29, 1873. 

*L^e  and  Letters  of  Roicoe  Conkling  (1889),  by  Alfred  R.  Conkling.  Harper* a 
Weekly  looked  more  favorably  on  Conkling*s  legal  attainments  than  did  most  of 
the  Bar,  saying,  Dec.  18,  1873:  "Senator  Conkling,  whose  name  is  now  oftenest 
mentioned  in  connection  with  the  office,  is  forty-five  years  of  age,  and  has  quite  as 
much  reputation  as  a  lawyer  as  either  of  the  Chief  Justices  at  the  period  of  their 
appointment,  and  is  probably  a  better  speaker  than  any  of  them  were  at  any  period 
of  their  career."  But  see  Nation,  May  82^  Oct.  2»  1873;  Independent,  Nov.  27, 
1878^  presenting  a  contraiy  view. 


276  THE  SUPREME  COURT 

fill,  in  rapid  succession,  some  of  the  most  exalted  places 
under  our  government ;  as  a  Senator,  as  a  member  of 
the  Joint  High  Commission,  and  lastly,  as  the  official 
head  of  the  American  Bar,  he  has  had  ample  opportu- 
nity for  the  display  of  great  talents,  and  in  all  these 
positions  he  has  acquitted  himself  in  such  a  manner  as 
neither  to  invite  distinguished  praise,  nor,  except  in  the 
Pacific  Railroad  Case^  to  provoke  much  adverse  criti- 
cism. If  the  public  have  seen  in  him,  as  yet,  Kttle  to 
justify  his  selection  for  the  high  promotion  with  which 
the  President  has  honored  him.  they  have  seen  nothing 
to  indicate  that  in  his  hands  the  dignity  of  his  great 
office  will  be  lowered  or  its  powers  used  unworthily. 
Indeed,  while  it  would  be  idle  to  deny  that  the  nomi- 
nation was  a  disappointment  to  all  who  had  hoped  that 
the  seat  of  Marshall  might  be  filled  by  a  fitting  succes- 
sor, yet  that  disappointment  was  tempered  by  a  sense 
of  relief  that  the  country  had  at  least  escaped  the  mor- 
tification of  seeing  in  that  honored  place  a  man  destitute 
alike  of  judicial  temper  and  judicial  experience,  whose 
only  claim  to  it  was  derived  from  active  and  unscrupu- 
lous service  as  a  political  partisan.  Of  Mr.  Williams' 
judicial  experience,  there  is  little  to  say.  He  was  bom 
in  1823,  and  was  admitted  to  the  Bar  in  New  York. 
Three  years  afterwards,  in  1847,  he  was  elected  Judge 
of  the  first  judicial  district  of  Iowa,  and  in  1853,  he  was 
appointed  Chief  Justice  of  Oregon  Territory,  —  an 
office  which  he  held  till  1857,  when  he  declined  a  re- 
appointment, as  he  then  left  the  Bench  to  begin  his 
political  career.  Such  a  training  does  not  of  necessity 
give  that  familiarity  with  questions  of  the  class  upon 
which  the  Supreme  Court  is  called  to  pass,  which  we 
have  been  taught  to  consider  desirable ;  but  it  is  calcu- 
lated at  least  to  free  the  mind  from  narrowing  local 
influences.    We  cannot  conclude  without  expressing 


THE  SLAUGHTERHOUSE  CASES  277 

our  regret  that  the  President,  in  making  this,  the  most 
important  appointment  of  his  Administration,  has  not 
improved  the  opportunity  to  make  such  a  choice  from 
the  eminent  lawyers  of  the  country  as  the  people  had  a 
right  to  expect/'  "It  is  rather  odd,  it  must  be  ad- 
mitted," said  the  Nation,  "that  the  chief  of  a  Court 
which  has  to  pass  on  the  most  complicated  controversies 
of  a  great  commercial  country  should  be  chosen  from 
the  Bar  of  a  frontier  State  like  Oregon.  .  .  .  Mr. 
Williams,  if  not  able  and  learned,  is  laborious,  pains- 
taking and  respectable ;  and  as  things  go,  his  appoint- 
ment will  create  a  feeling  of  relief." 

The  conmients  of  the  press  were  apologetic,  many 
frankly  condemnatory,  and  all  indicating  clearly  that 
the  selection  was  not  regarded  as  a  fit  one.  "The 
general  feeling  of  the  public  is  that  the  President  might 
and  should  have  done  better,  with  such  names  as  Evarts, 
Cushing,  Curtis,  Hoar  —  to  say  nothing  of  the  present 
members  of  the  Supreme  Court,"  said  the  Independent, 
and  it  expressed  the  hope  that  the  Senate  would  refuse 
to  confirm.  "The  country  cannot  afford  to  have  any 
second-rate  man,  or  any  one  whose  qualifications  are 
not  beyond  dispute,  placed  at  the  head  of  the  Supreme 
Court."  "The  nomination  surprised  and  disgusted 
every  lawyer  in  the  United  States  who  has  the  honor  of 
his  profession  at  heart.  It  fell  like  a  blow  upon  every 
respectable  member  of  the  Federal  Judiciary,"  said  the 
Springfield  Republican.^ 

^  AfMT.  Law  Rev.  (Jan.,  1874),  Vm;  Nation,  Dec.  4,  187S;  Independent,  Dec. 
11»  25,  187S.  Williams  had  only  recently  been  defeated  in  the  very  important 
Credit  MobUier  Case,  in  the  Circuit  Court  in  Connecticut,  where  he  had  argued 
against  giants  of  the  Bar  like  Benjamin  R.  Curtis,  William  M.  Evarts  and  Sidney 
Bartlett.  "The  appearance  made  by  Mr.  Williams  in  this  case  was  very  unfor- 
tunate, and  does  not  reconcile  the  Bar  throughout  the  country  to  his  nomination." 
Nation,  Dec.  11,  187S;  Springfield  ReptMican,  Jan.  2,  1874;  New  York  Herald, 
Jan  4,  6,  1874,  quoting  press  opinion  through  the  country ;  New  York  Tribune, 
Jan.  i,  1874 ;  New  York  Evening  Post,  Jan.  5,  1874.  Harper's  Weekly  was  at  first 
favorable  to  Williams,  see  Dec.  20, 187S,  Jan.  3, 1874. 

George  H.  Williams  himself  in  his  Reminiscences,  in  Yale  Law  Joum.»  Vm, 


278  THE  SUPREME  COURT 

Within  a  week,  the  sentiment  of  the  country  and  of 
the  Bar  had  become  so  clearly  that  of  protest  that  the 
Senate  Judiciary  Conmiittee,  which  had  at  first  reported 
favorably  on  the  nomination,  called  back  its  report 
for  further  investigation.  Williams  himself,  however, 
claimed  that  he  had  been  viciously  slandered,  and  his 
friends  urged  confirmation  as  a  vindication.  Neverthe- 
less, it  was  reported  in  the  newspapers  that  Senator 
Conkling  was  to  propose  a  bill  in  the  Senate  to  abolish 
the  office  of  Chief  Justice  as  a  Presidential  appointment, 
and  to  make  it  the  duty  of  the  Associate  Judges  to  elect 
the  presiding  Chief  Justice  from  their  number  —  such 
a  measure  being  deemed  a  happy  expedient  ^'  to  let  Mr. 
Williams  dpwn  gracefully  and  save  the  Republican 
party  the  blemish  of  a  scandal."  One  Senator  said  that 
there  was  no  need  of  a  bill  to  abolish  the  Chief  Justice- 
ship, for  the  nomination  of  Williams  had  already  done 
that.  Finally,  after  the  New  York  Bar  Association 
had  passed  resolutions  protesting  the  nomination,  and 
stating  that  it  ^*  disappoints  the  just  expectation  of  the 
legal  profession  and  does  not  deserve  the  approval  of  the 
people,  for  the  reason  that  the  candidate  proposed  is 
.wanting  in  those  qualifications  of  intellect,  experience 
and  reputation  which  are  indispensable  to  uphold  the 
dignity  of  the  highest  National  Court,  and  to  maintain 
general  respect  for  the  law  in  the  person  of  the  officer  who 
presides  over  its  administration,"  *  President  Grant 
yielded,  and,  at  Williams'  own  request,  withdrew  the 
nomination  on  January  8, 1874. 

written  in  1899,  sftid :  "I  was  favorable  to  the  appointment  of  Justice  Miller,  but 
the  President  was  unwilling  to  discriminate  between  the  Judges  on  the  Bench.  .  .  . 
Conkling  would  have  made  a  splendid  Chief  Justice.  .  .  .  The  President  nomi- 
nated me  without  my  knowledge  or  consent.  .  .  .  Suffice  to  say  that  the  reasons 
for  the  Republican  opposition  to  me  in  the  Senate  were  not  such  as  were  given  to 
the  public  by  the  newspapers." 

^  New  York  Tribune,  Jan.  8, 1874,  said  it  hoped  the  President  had  learned  a  lesson. 
The  New  York  Herald,  Jan.  7,  8, 1874,  said  that  the  President  was  immensely  sur- 
prised at  the  unfavorable  reception  of  Williams*  nomination  by  the  country. 


THE  SLAUGHTERHOUSE  CASES  279 

Grant's  next  nomination  for  Chief  Justice  caused 
even  more  of  a  surprise  and  sensation ;  for  on  January 
9,  he  nominated  another  close  personal  friend,  Caleb 
Cushing.  Unlike  Williams,  Cushing  was  a  man  pre- 
eminently qualified  by  legal  attainments  for  the  posi- 
tion. He  had  been  Attorney-General  of  the  United 
States,  Judge  of  the  Supreme  Judicial  Court  of  Massa- 
chusetts, and  as  a  profound  jurist,  he  probably  ex- 
celled either  Marshall  or  Taney  or  Chase ;  but  he  was 
a  man  of  exceedingly  unstable  character,  and  in  pol- 
itics had  been  successively  "a  Whig,  a  Tyler  man,  a 
Democrat,  a  Constitutional  Conservative  in  the  con- 
fidence of  Johnson,  and  a  Republican/'  While  vigor- 
ous both  mentally  and  physically,  he  was,  nevertheless, 
in  his  seventy-fourth  year.  His  appointment  appears 
to  have  been  largely  due  to  Grant 's  desire  to  recognize 
the  services  of  the  American  counsel  at  the  Geneva 
Arbitration,  at  the  head  of  which  had  been  Cushing  and 
Evarts.  While  the  nomination  was  objectionable  to 
the  Senate,  still  the  completeness  with  which  Cushing 
fulfilled  the  legal  requirements  of  the  oflBce  would  prob- 
ably have  led  to  confirmation,  had  action  been  taken 
at  once,  even  though  the  Radical  Republican  press  vio- 
lently protested  against  such  action  on  this  "mcongru- 
ous"  and  "objectionable"  nomination  (as  the  Tribune 
termed  it).  "Simply  because  he  is  a  familiar  and 
serviceable  friend.  Gen.  Grant  proposes  to  place  at  the 
head  of  the  Supreme  Court,  to  decide  upon  questions 
involving  the  National  sovereignty  and  the  civil  rights 
acquired  by  the  war  and  consecrated  by  the  late  Amend- 
ments to  the  Constitution,  a  pro-slavery  Democrat 
whose  views  have  been  notoriously  in  opposition  to 
those  by  virtue  of  which  the  war  was  carried  on" ;  ^  but, 

^  New  York  Herald,  Jan.  10»  13,  15, 1874 ;  New  York  Tribune,  Jan.  10, 12»  18, 14^ 
15, 1874 ;  Harper's  Weekly,  Feb.  7, 1874 ;  NoHon,  Jan.  15.  1874. 


280  THE  SUPREME  COURT 

it  added  caustically :  "The  fear  of  a  worse  thing  may 
induce  the  Senate  to  accept  this/'  So  too,  the  Nation 
said  that  while  admitting  that  Gushing  stood  in  the 
front  ranks  for  legal  ability  and  learning,  "the  President 
has  at  last  entered  the  small  circle  of  eminent  lawyers, 
and  then  with  great  care  has  chosen  the  worst  man  in 
it.  His  entering  the  circle  was  a  result  of  the  public 
feeling  caused  by  the  appointment  of  an  utterly  unfit 
man  of  doubtful  reputation  like  Williams ;  his  selection 
of  Mr.  Gushing,  a  consequence  of  his  fixed  policy  of 
making  pubUc  appointments  on  private  considerations. 
As  to  Mr.  Gushing,  it  may  be  said  on  the  one  hand,  that 
he  is  past  the  age  at  which  the  law  contemplates  a  Ghief 
Justice  retiring,  is  of  a  crafty  nature  and  erratic  tem- 
perament, and  more  renowned  for  shrewdness  and  learn- 
ing than  respected  for  talents  and  integrity;  on  the 
other  hand,  he  is  more  active  in  body  and  mind  than 
many  a  man  of  half  his  years,  and  like  Ghief  Justice 
Taney  may  live  to  be  eighty-eight.  .  .  .  We  believe 
that  it  would  be  found,  if  the  truth  were  known,  that  a 
good  deal  of  the  favor  with  which  the  nomination  was 
at  first  received  at  Washington  was  due  to  the  fear  felt 
by  those  who  are  behind  the  scenes,  that,  if  he  was  re- 
jected, a  worse  man  might  be  produced." 

Before  the  Senate  acted,  a  curious  turn  of  fortune 
supplied  it  with  an  excuse  for  rejection.  Some  years 
previous,  the  Government  had  purchased  from  a  Gon- 
federate  agent,  who  had  fled  to  Ganada,  three  trunks  of 
Gonf  ederate  official  documents,  many  of  which  had  been 
found  useful  in  defense  of  suits  brought  by  alleged  loyal 
men  in  the  South  on  claims  against  the  Government. 
Among  these  papers,  there  now  was  found  a  letter 
written  by  Gushing  to  JeflFerson  Davis,  as  President  of 
the  Gonfederacy,  on  March  21, 1861,  recommending  to 
his  attention  a  young  man  who  was  then  returning  to 


THE  SLAUGHTERHOUSE  CASES  281 

Texas.  It  was  a  simple,  friendly  letter  and  contained 
no  proof  of  disloyalty  on  Gushing 's  part,  nor  could  there 
be  any  doubt  whatever  of  Gushing 's  full  sympathy  and 
action  with  the  Union  cause,  throughout  the  war.  But 
this  letter,  ''an  astounding  development"  as  it  was 
termed,  afforded  sufficient  ground  for  an  outcry  against 
his  confirmation ; '  and  Grant  was  forced  to  withdraw 
the  nomination,  on  January  13.  That  Gushing  would 
have  made  an  able  Ghief  Justice  was  the  opinion  of 
Gharles  Sumner,  who  supported  him  and  who  wrote, 
January  15,  the  following  interesting  commentary :  * 

I  should  never  have  nominated  or  recommended  Gushing 
as  Chief  Justice,  but  I  was  called  to  consider,  his  name  being 
before  the  Senate,  if  I  could  vote  for  his  rejection.  Now,  I 
know  him  well,  having  seen  him  for  the  last  ten  years  con- 
stantly ;  and  I  know  his  positions  on  questions  in  which  I 
am  deeply  interested.  I  trust  him  absolutely,  and  believe, 
if  the  occasion  had  occurred,  he  would  have  vindicated  our 
ideas  judicially  far  better  than  any  probable  nominee  of 
Grant.  I  do  not  talk  in  the  dark,  for  I  have  talked  with  him 
on  these  questions  and  have  seen  his  sympathy  with  me. 
You  know  that  I  do  not  cherish  old  differences  and  animos- 
ities. How  many  have  I  seen  advanced  to  the  front  who 
were  once  bitterly  the  other  way !  Knowing  Gushing  as  I 
did,  would  it  not  have  been  mean  and  craven  for  me  to  turn 
against  him,  or  to  skulk  in  silence  ?    This  is  not  my  way  with 

^  The  SprinfffiM  Weekly  Republican,  Jan.  16,  1874,  stated  that,  according  to  the 
Washington  correspondent  of  the  New  York  Herald,  the  letter  was  found  by  a  derk, 
who  took  it  to  Gen.  Townsend ;  that  it  then  passed  to  President  Grant  through 
Gen.  Belknap;  that  Grant  saw  nothing  objectionable  in  it;  that  then  Senator 
Sargent  of  California  got  hold  of  it ;  and  that,  after  Senators  Boutwell  and  Conkling 
had  voted  for  Gushing  in  Executive  Session,  Sargent  rose  and  read  the  note;  where- 
upon. Senators  Cameron  and  Carpenter  said  that  they  could  not  vote  for  Gushing, 
and  action  was  postponed  so  that  the  President  might  be  communicated  with. 

*  Sumner,  IV,  588,  letter  to  F.  W.  Bird,  Jan.  15,  1874.  See  Reports,  Reporters 
and  Reporting,  Southern  Law  Rev,  (April,  1879),  for  a  remaikable  description  of  the 
causes  of  the  rejection  of  Williams  and  of  Gushing  by  the  Senate.  In  Timothy 
Otis  Eowe,  by  Duane  Mowry,  Oreen  Bag  (1908),  XV,  it  is  said  that  Howe,  then 
Senator  from  Wisconsin,  was  offered  the  position  of  Ghief  Justice  by  Grant,  but 
that  he  declined,  not  wishing  to  make  a  vacancy  in  the  Senate  for  the  election  of  a 
Democrat. 


282  THE  SUPREME  COURT 

friends.  Such  is  not  my  idea  of  friendship.  But  no  earthly 
friendship  could  make  me  put  in  jeopardy  our  cause.  I 
confess  that  I  am  glad  of  the  sensibility  shown  for  the 
safeguards  of  Reconstruction.  .  .  .  But  what  shall  we  do 
with  other  possible  nominees?  Who  will  vouch  for 
B.  R.  C.(urtis)  ?  And  who  will  vouch  for  some  accepted 
Republicans  with  whom  technicality  is  a  peril  to  principle  ? 

There  was  now  much  anxiety  on  the  part  of  the  Bar 
as  to  the  President's  next  action.  "The  country 
warned  by  two  such  experiences  will  await  with  unusual 
alarm  Grant's  third  choice;  but  there  is  no  further 
room  for  surprise/'Jsaid  the  Tribune.  "After  the  pre- 
vious shocks,  the  people  are  prepared  to  accept,  with 
something  like  equanimity,  any  appointment  which 
should  not  be  scandalous."  Those  who  were  close  to 
Grant  believed  that  he  would  appoint  either  the  So- 
licitor General,  Benjamin  H.  Bristow  of  Kentucky,  or 
Morrison  R.  Waite  of  Ohio  who  had  been  one  of  the 
counsel  at  the  Geneva  Arbitration.  The  President 
fulfilled  their  expectation  by  sending  to  the  Senate  on 
January  19,  the  name  of  the  latter.  Waite  was  con- 
firmed on  January  21,  by  a  vote  of  sixty-three  to  six. 
He  was  then  in  his  fifty-eighth  year,  and  had  no  pre- 
vious judicial  experience;  his  legal  practice  had  been 
chiefly  in  Ohio ;  he  had  been  admitted  to  practice  in  the 
Supreme  Court  during  the  previous  year,  but  had  argued 
no  case  there.  The  appointment  was  greeted  with  a 
sense  of  relief,  but  with  no  enthusiasm.^     "He  is  an 

^  New  York  Tribune,  Jan.  17,  20,  21, 1874,  quoting  opinions  of  the  press;  NatUm, 
Jan.  22,  1874.  Amer,  Law  Ren,  (April,  1874),  VIII,  said:  "His  lepuUtion  in 
Ohio  is  that  of  a  learned,  upright  and  able  lawyer.  He  presided  over  the  consti- 
tutional convention  of  Ohio  at  the  time  of  his  appointment,  and  was  with  Mr. 
Evarts  and  Mr.  Gushing  of  counsel  for  the  United  States  at  the  Geneva  Arbitration, 
where  his  services,  though  unaided  by  a  prestige  like  theirs,  were  not  less  valuable 
than  those  of  his  distinguished  associates.  He  comes  to  the  Bench  with  no  entan- 
glements of  personal  ambition,  and  no  judicial  record  with  which  perforce  he  must 
be  consistent ;  and  we  welcome  him,  with  the  assurance  that  whatever  he  accom- 
plished for  the  more  full  and  perfect  exposition  of  the  law,  will  meet  with  the  hearty 
support  of  the  profession.    Ghief  Justice  Waite  has  had  this  rare  experience,  that 


THE  SLAUGHTERHOUSE  CASES  28S 

honest  man  and  a  fair  lawyer  and  that  is  as  much  as  we 
can  reasonably  expect  from  the  President ; "  "  a  perfectly 
respectable  man/'  "The  President  has  with  remark- 
able skill  avoided  choosing  any  first  rate  man.  •  •  .  On 
the  whole  considering  what  the  President  might  have 
done  and  tried  to  do,  we  ought  to  be  very  thankful  and 
give  Mr.  Waite  a  cordial  welcome.'*  Such  were  some 
of  the  newspaper  comments.  "  The  general  feeling  both 
inside  and  outside  the  Bar  will  be  one  of  profound  relief, 
shading  into  cordial  approbation,"  said  the  Springfield 
Republican.  'Contrasting  what  is,  with  what  might 
have  been,  we  congratulate  the  President  upon  his 
good  choice,  and  the  country  upon  its  good  fortune." 
"Waite  is  that  luckiest  of  all  individuals  known  to  the 
law,"  said  Judge  Hoar,  "an  innocent  third  party  with- 
out notice."  "I  do  not  hesitate  to  say  that  there  were 
scores  of  lawyers  in  Ohio  who  would  have  been  regarded 
by  members  of  his  profession  as  being  as  well  if  not  bet- 
ter qualified,"  said  McCulloch.  "  He  was  little  known 
outside  of  the  State.  He  had  not  been  ranked  among 
the  great  lawyers  of  the  country."  ^ 

On  March  4,  1874,  Waite  assumed  his  office,  and 
served  for  fourteen  years,  to  the  great  satisfaction  of 
the  Bar  and  of  the  public.^ 

twice  —  in  being  elected  to  preside  over  tlie  constitutional  convention  of  Ohio* 
and  in  being  confinned  as  Chief  Justice  —  he  has  had  all  the  votes  of  each  party 
in  his  favor.*' 

^  Springfield  Weekly  RepubUean,  Jan.  23, 1874 ;  Men  and  Mannere  cf  Eaif  a  Cen- 
tury (1888),  by  Hugh  McCulloch,  852;  Morrison  R.  Waiie,  by  Benjamin  Rush 
Cowen,  Oreai  American  Lawyers  (1009),  VII. 

*  With  Waite's  Chief  Justiceship,  the  Court  began  its  lengthened  annual  service, 
the  beginning  of  the  session  in  each  year  having  been  advanced  from  the  first  Mon- 
day in  December  to  the  second  Monday  in  October,  under  the  provisions  of  the 
Act  of  Jan.  24, 1878. 


CHAPTER  THIRTY-THREE 

CHIEF  JUSTICE  WAITE  AND  THE  FOURTEENTH 

AMENDMENT 

1874-1878 

The  years  of  Waiters  Chief  Justiceship  covered 
President  Grant's  second  term  and  the  Administrations 
of  Hayes,  Garfield,  Arthur  and  Cleveland,  The  prob- 
lems of  the  war  and  its  aftermath  had  been  largely 
settled  before  he  came  upon  the  Bench ;  but  new  and 
grave  economic  and  social  questions  now  presented 
themselves.  These  years  saw  the  growth  of  the  West- 
ern States  and  the  immense  development  of  the  ma- 
terial resources  of  the  country,  and  gave  rise  to  a  multi- 
tude of  decisions  on  subjects  of  political  and  industrial 
importance  —  the  new  phases  of  the  regulation  of  in- 
terstate commerce,  of  the  transcontinental  railroads 
and  of  the  telegraph,  railroad  receiverships,  the  Granger 
legislation,  control  of  public  utilities  and  rates,  the 
relation  of  the  States  to  the  liquor  traffic,  strikes 
and  anarchist  riots,  polygamy,  anti-Chinese  legislation, 
superintendence  and  status  of  the  Indian  wards  of  the 
Nation,  repudiation  of  State  and  municipal  debts,  the 
constitutionality  of  Federal  laws  enacted  for  the  pro- 
tection of  the  negro,  the  right  to  sue  State  officials  and 
the  scope  of  the  Eleventh  Amendment,  the  liability  of 
agents  of  the  Federal  Government  to  respond  for  tor- 
tious acts  and  Federal  protection  of  such  agents  for  acts 
done  in  pursuance  of  their  duties.  It  was  fortunate 
for  the  country  that  the  molding  of  its  destiny  in  these 


WAITE  AND  FOURTEENTH  AMENDMENT    886 

various  directions  fell  upon  the  shoulders  of  a  Court 
containing  Judges  of  such  strength  of  mind  and  char- 
acter and  of  such  breadth  of  vision  as  Waite,  Miller, 
Field  and  Bradley.  And  the  general  public  confidence 
in  the  Court  was  shown  by  the  fact  that,  for  over  ten 
years  after  Waite's  accession,  it  was  substantially  free 
from  serious  attack,  either  in  Congress  or  in  the  press, 
l^en  it  is  recalled  that  in  every  year  from  1850  to 
1873  (with  the  exception  of  the  five  years  of  the  war) 
there  had  been  Congressional  legislation  proposed  in 
serious  derogation  of  the  Court's  powers,  the  practical 
immunity  from  assault  which  occurred  from  1873  to 
1884  is  a  notable  feature  in  its  history. 

One  advantage  which  accrued  to  the  Court  during 
this  period  was  the  comparatively  slight  change  in  its 
membership ;  for  during  the  first  eight  years  of  Waiters 
Chief  Justiceship,  from  1873  to  1881,  there  were  but 
two  vacancies.  And  as  more  than  a  majority  of  the 
Judges  (Waite,  Clifford,  Field,  Miller,  Swayne,  Brad- 
ley and  Hunt)  continued  to  serve  throughout  this  pe- 
riod, the  policy  of  the  Court  remained  unusually  stable 
atbd  continuous.  In  1875,  an  effort  was  made  to  in- 
duce the  Chief  Justice  to  allow  his  name  to  be  consid- 
ered for  the  coming  Presidential  nomination;  but  he 
finally  refused,  writing :  ^ 

1  Toledo  Cammereial,  Nov.  27,  1875;  New  York  Times,  Nov.  27,  1875.  It  ap- 
pears that  Judge  Miller  entertained  similar  views  as  to  the  propriety  of  a  Judge  of 
the  Supreme  Court  beooming  a  Presidential  candidate,  see  WaekingUm  Ckronide, 
Aug.  28,  1874,  stating:  ''When  the  name  of  Justice  Miller  was  urged  in  certain 
Republican  journals,  he  veiy  promptly  authorized  a  publication  in  the  New  York 
Times  that  under  no  dicumstances  would  he  allow  himself  to  be  a  candidate  for  any 
political  office;  that  when  he  accepted  his  judicial  position  he  abandoned  political 
aspirations,  and  that-  he  believed  it  inconsistent  with  the  dignity  or  purity  of  the 
Bench,  for  Judges  to  allow  themsdves  to  become  possible  or  probable  candidates 
for  any  political  office,  however  distinguished  or  honorable."  The  Central  Law 
Journal,  Sept.  8, 1874,  said :  "It  is  not  improbable  that  the  popular  confidence  in 
the  integrity  of  the  highest  Court  of  the  Nation  may  have  been  to  some  extent 
impaired,  within  the  last  few  years,  by  the  knowledge  that  some  of  its  members 
were  possible,  or  even  probable^  candidates  for  the  Presidency.  Whenever  the  in- 
tegrity of  the  Bench  is  subject,  in  any  considerable  degree,  to  the  misgivings  of  in- 


286  THE  SUPREME  COtJRT 

The  office  came  to  me  covered  with  honor,  and  when  I 
accepted  it»  my  chief  duty  was  not  to  make  it  a  stepping- 
stone  to  sometiiing  else,  but  to  preserve  its  purity,  and,  if 
possible,  make  my  name  as  honorable  as  that  of  my  prede- 
cessors. No  man  ought  to  accept  this  place  unless  he  shall 
take  a  vow  to  leave  it  as  honorable  as  he  found  it.  There 
ought  never  to  be  any  necessity  for  rebuilding  from  below. 
AU  addition  should  be  above.  In  my  judgment,  the  Consti- 
tution might  wisely  have  prohibited  the  election  of  a  Chief 
Justice  to  the  Presidency.  Entertaining  such  a  view,  could  I 
properly  or  consistently  permit  my  name  to  be  used  for  the 
promotion  of  a  political  combination  as  now  suggested? 
If  I  should  do  so,  could  I  at  all  times  and  in  all  cases  remain 
an  unbiased  Judge  in  the  estimation  of  the  people  ? 

"Chief  Justice  Waite,  who  has  been  talked  of  as  a 
candidate  for  the  Presidency,  has  made  a  really  valua- 
able  contribution  to  political  literature,  not  only  by  de- 
clining to  allow  his  name  to  be  used  for  any  such  pur- 
pose, but  by  pointing  out  the  gross  impropriety  of  mak- 
ing the  Bench  of  the  Supreme  Court  a  stepping-stone  to 
something  else,"  said  the  Nation;  and  this  paper  very 
strikingly  pointed  out  the  necessity  for  the  preservation 
of  the  utmost  possible  public  confidence  in  the  Court. 
"The  strain,  indeed,  which  the  increase  and  conglomer- 
ation of  wealth  are  likely  to  put  on  judicial  integrity 
and  judicial  reputation,  is  certainly  greater  than  that 
to  which  they  were  exposed  through  the  pressure  of 
royal  influence.  The  influence  of  the  new  temptation 
is  far  more  subtle,  and  far  less  alarming  to  judicial  vir- 
tue, and  far  harder  to  discover.  The  growth  of  riches 
is  creating  powerful  bodies  of  persons  whose  interest 
in  legislation  and  judicial  decisions  is  enormous,  whose 
assiduity  never  tires,  and  who  can  often  accomplish 

telligent  hope,  it  is  a  public  misfortune.  The  repose  of  society  requires  that  the 
popular  judgment  should  rest  with  confidence  in  the  impartiality  of  the  Bench; 
and  this  cannot  be,  if  the  Bench  comes  to  be  looked  upon  as  a  stepping-stone  to  p<^ 
litical  preferment." 


WAITE  AND  FOtJRTEENTH  AMENDMENT    287 

their  object  just  as  well  by  pretending  they  are  able  to 
corrupt  oflScers  as  by  acknowledging  that  they  have 
corrupted  them.  The  Rings  never  admit  that  any 
man  is  pure.  .  .  •  The  stronger  and  more  daring  they 
grow,  the  more  necessary  it  is  that  Courts  of  Justice 
should  be  fortified  against  them ;  and  a  Court  of  Jus- 
tice is  never  fortified  as  long  as  it  is  not  above  suspicion. 
The  Supreme  Court  is  above  suspicion  thus  far,  and 
there  is  no  such  dearth  of  Presidential  candidates  as  to 
make  it  excusable  to  expose  it  to  even  a  shadow  of  a 
doubt.''  ^ 

The  first  vacancy  during  Waiters  regime  was  brought 
about  by  the  withdrawal  of  Judge  David  Davis,  who 
after  a  service  of  fifteen  years,  had  been  elected  Sena- 
tor from  Illinois,  January  25,  1877,  and  who  resigned 
as  Judge  on  March  4,  1877,  after  the  inauguration  of 
President  Hayes.  His  retirement  from  the  Bench  was 
not  entirely  unwelcome,  for  his  participation  in  politics 
and  public  affairs,  particularly  his  acceptance  in  1872 
of  the  nomination  for  the  Presidency  by  the  Labor 
Reform  Party,  had  caused  considerable  comment  and 
disapproval.^  For  Davis'  place,  there  were  many 
eager  candidates  —  Senator  Isaac  P.  Christiancy  of 
Michigan,  Senator  Timothy  O.  Howe  of  Wisconsin 
(who  had  been  prominently  mentioned  for  Chief  Jus- 
tice, before  Waiters  appointment),  John  H.  Caldwell 
of  Arkansas,  Circuit  Judge  Thomas  Drummond  of 
Illinois,  Circuit  Judge  John  F.  Dillon  of  Iowa.    The 

^  Nation,  Dec.  2, 1875.  Harper't  Weekly,  Nov.  27, 1875,  aljo  commented  on  the 
"essential  impropriety  of  the  effort  to  draw  the  Supreme  Bench  into  every  Presi- 
dential contest",  and  added:  '* Chief  Justice  Waite  fulfils  his  duties  witii  quiet 
dignity.  When  he  took  his  seat,  it  was  the  general  conviction  that  political  ambi- 
tion no  longer  sat  upon  the  highest  Bench,  and  the  country  would  be  spared  the 
spectacle  that  had  pained  it." 

*  Harper's  Weekly,  Oct.  28, 1871,  stated  that  it  was  reported  that  Davis  was  to  be 
Democratic  candidate  for  President;  ibid.,  April,  1872,  "The  Presidential  Fever  on 
the  Bench."  See  also  Nation,  Feb.  1, 1877,  stating  that  there  should  be  a  Constitit' 
taonal  Amendment  making  Judges  ineligible  to  political  office. 


288  THE  SUPREME  COURT 

South  urged  William  Frierson  Cooper  (Chancellor  of 
Tennessee),  Herschell  V.  Johnson  of  Georgia  and 
Benjamin  H.  Bristow  of  Kentucky  (ex-Secretary  of  the 
Treasury.^  At  one  time,  President  Hayes  had  defi- 
nitely decided  on  Bristow;  but  as  there  was  strong 
opposition  to  him  in  the  Senate,  Hayes  finally  ap- 
pointed on  March  29, 1877,  Bristow's  law  partner,  John 
Marshall  Harlan  of  Kentucky.  Harlan  was  but  forty- 
four  years  old ;  he  had  held  no  high  judicial  office,  but 
for  f oiu"  years  had  been  State  Attorney-General.*  Three 
years  elapsed  before  another  vacancy  occurred.  In 
1880,  Judge  Strong  resigned,  after  a  comparatively  brief 
service  of  ten  years.  In  his  place.  President  Hayes 
appointed  on  December  15,  1880,  William  B.  Woods 
of  Georgia,  the  first  Judge  from  the  South  since  the 
appointment  of  Judge  Campbell,  twenty-eight  years 
before,  in  1852.  Judge  Woods  was  fifty-six  years  old 
and  had  been  United  States  Circuit  Judge  for  the  Fifth 
Circuit  for  twelve  years.' 

For  the  first  six  years  after  Waite  became  Chief  Jus- 
tice, the  tendency  of  the  Court  was  one  of  reaction  from 
the  extreme  Nationalistic  doctrines  which  had  in  general 
prevailed  in  the  opinions  delivered  during  and  after  the 
war.  Beginning  with  the  Slaughterhoitse  Cases  in  1873, 
and  continuing  until  about  1880,  the  decisions  showed  a 
marked  tendency  to  uphold  the  powers  of  the  States. 
This  was  particularly  apparent  in  the  cases  involving 
the  Fourteenth  Amendment.  Though  the  main  pur- 
pose of  the  f ramers  of  that  Amendment  had  been  to  cut 

1  New  York  Tribune,  March  7, 1877;  New  York  World,  March  7;  Sovihem  Law 
Reo.  (1877)»  n.  b„  III ;  Philadelphia  Press,  March  16, 1877;  Boston  Post,  Maich  10. 
1877,  strongly  opposed  Bristow  and  urged  Drummond. 

'  President  Hayes  wrote  in  his  diary,  March  12,  1878 :  "The  most  important 
appointments  are  the  judicial.  They  are  for  life,  and  the  Judiciary  of  the  country 
concerns  all  interests,  public  and  private.  My  appointments  will  bear  examination ;" 
and  on  March  26, 1878,  referring  to  a  bitter  attack  on  him  by  Senator  Howe,  Hayes 
wrote :  "His  grievance  is  the  failure  to  appoint  him  Judge." 

*  Woods  was  confirmed  on  Dec.  21, 1880,  by  a  vote  of  SO  to  8. 


WAITE  AND  FOURTEENTH  AMENDMENT    28d 

down  the  State  police  power  and  to  confer  on  the  Na- 
tional Government  the  right  to  restrain  the  States  in  its 
exercise,  the  course  of  the  decisions  of  the  Court  had 
been,  with  very  little  variation,  to  controvert  the  pur- 
pose of  the  Amendment,  to  belittle  its  effect,  to  mag- 
nify the  police  power  and  to  give  it  an  excessively 
wide  range.i 

Within  a  year  after  Waiters  accession,  the  Court 
affirmed  its  adherence  to  the  doctrine  of  the  Slaughter- 
house  Case,  by  holding  in  Minor  v.  Happerset,  21  Wall. 
162,  in  1875,  that  the  Fourteenth  Amendment  did  not 
add  to  the  privileges  and  immunities  of  a  citizen  of  the 
United  States,  and  that  suffrage,  not  being  a  right 
belonging  to  a  citizen  of  the  United  States,  was  not  in- 
fringed by  the  action  of  a  Missouri  official  in  refusing  to 
register  a  woman  as  a  voter.  Since  rights  pertaining 
to  a  citizen  of  the  United  States  as  such  were  few  in 
number,^  and  since  the  Court  had  already,  in  1869, 
held  in  Paul  v.  Virginia,  8  Wall.  168,  that  a  corporation 
was  not  a  "citizen",  it  now  became  evident  that  the 
Privilege  and  Immunity  Clause  of  the  Amendment,  as 
construed  by  the  Court,  afforded  slight  protection  to  an 
individual,  and  no  protection  to  a  corporation,  affected 
by  oppressive  State  legislation.  Consequently,  litigants 
and  their  counsel  began  to  take  appeals  to  the  Supreme 
Court,  based  on  the  Due  Process  Clause.    Two  ques- 

1  PoUHeal  Science  and  ConsHiuUonal  Law  (1890),  by  John  W.  Burgess,  I,  211  et 
aeq.  A  New  NaHon,  by  Hollis  R.  Bailey,  Harp.  Law  Reo,  (1895),  IX ;  Twining  v.  New 
Jersey  (1908),  211  U.  S.  78.  It  is  somewhat  difficult  to  assent  to  the  theory  pro- 
pounded in  Conetihdumal  Opinions  of  Justice  Holmes,  by  Felix  Frankfurter,  Hairv. 
Law  Rev.  (1916),  XXIX,  190,  in  which  the  writer  contends  that  Judge  Field's  dis- 
senting opinion  in  the  Slaughterhouse  Cases  narrowing  the  scope  of  the  State  police 
power  gradually  became  the  prevailing  doctrine  of  the  Court,  "  until  in  AUgeyer  v. 
Louisiana,  165  U.  S.  578,  in  1897,  we  reach  the  crest  of  the  wave.  The  break  came 
and  the  tide  turned.  The  turning  point  is  the  dissent  in  the  case  of  Lochner  v.  New 
York,  198  U.  S.  45,  75,  in  1905." 

'  See  MeCready  v.  Virginia  (1877),  94  U.  S.  891,  in  which  a  right  to  plant  oysters 
in  a  State  was  held  not  a  right  pertaining  to  a  United  States  citisen ;  so  of  a  right  to 
bear  arms,  in  Presser  v.  Illinois  (1886),  116  U.  S.  852. 

VOL.  ni  — 10 


290  THE  SUPREME  COURT 

tions   were   usually   presented   by  these  cases  —  one 
whether  the  act  by  which  the  State  interfered  with  the 
citizen  constituted  a  lack  of  "due  process",  the  other 
whether  such  act  fell  within  the  legal  meaning  of  the 
word  "deprive"  in   connection  with   life,   liberty  or 
property.    The  cases  of  State  interference  with  life  or 
liberty  generally  presented  only  the  question  of  "due 
process"  and  involved  methods  of  judicial  or  adminis- 
trative procedure,  or  of  regulation  or  restriction  of  an 
individuaFs  vocation  or  avocation ;   while  State  inter- 
ference with  property  might  involve  questions  either  of 
"due  process"  or  of  "deprivation",  and  generally  arose 
out  of  the  exercise  of  the  police  power  or  of  the  power  of 
taxation  or  eminent  domain.^    Very  few  of  the  cases 
arising  under  the  Amendment,  prior  to  the  death  of 
Chief  Justice  Waite,  in  1888,  presented  the  question  of 
the  meaning  of  the  word  "deprive";    still  fewer  in- 
volved   State   legislation  restrictive  or  corrective  of 
business  or  labor  conditions  or  of  social  activities.     It 
was  not  until  after  the  accession  of  Chief  Justice  Fuller 
that  the  great  function  of  the  Court,  in  upholding  the 
progressive  and  experimental,  social  and  economic  legis- 
lation of  modem  times,  was  developed.    Under  Chief 
Justice  Waite,  the  application  of  this  Clause  of  the 
Amendment  was  chiefly  involved  in  cases  arising  under 
State  tax  laws,  and  in  connection  with  judicial  pro- 
cedure and  changes   in   administrative   and  judicial 
statutes  of  the  States.     Of  the  latter  class  of  cases,  one 
of  historic  interest  arose  in  the  Chicago  Anarchists  Case, 
Ex  parte  Spies,  123  U.  S.  131,  in  1887.^    The  former 

1  See  Popular  Law  Making  (1910),  by  Frederic  J.  Stimson,  129. 

'  See  Anarchists  Case,  by  William*  H.  Dunbar,  Harv.  Law  Reo.  '{ISSS),  I ;  Note  on 
writ  of  error  in  Fidden's  Case,  Amer.  Law  Rev.  (1890),  XXIV,  SOI ;  see  also  Fielden 
Y.  Illinois,  143  U.  S.  452,  in  1891 ;  see  interesting  article  on  The  Due  Process  Clause 
and  the  Substance  of  Individual  Rights,  by  Robert  P.  Beeder,  Amer.  Law  Reg.  (1910) 
N.  B.,  XLIX,  contending  that  the  clause  should  not  be  applied  to  substantive  rights, 
but  only  to  questions  of  procedure. 


^^ 


WAITE  AND  FOURTEENTH  AMENDMENT    291 

class  of  cases,  presenting  the  question  of  due  process 
in  tax  legislation,  arose  very  early.  The  first  four  (be- 
tween 1876  and  1878)  involved  Reconstruction  legisla- 
tion in  Louisiana  on  taxation,  jury  trial  and  betterment 
assessment,  and  the  Court  sustained  the  law  in  each 
instance.  During  the  next  ten  years,  tax  and  better- 
ment laws  of  Connecticut,  Pennsylvania,  California, 
New  Jersey  and  Kentucky  and  New  York  were  sus- 
tained.^ 

As  an  illustration  of  the  inadequate  appreciation  of 
the  scope  of  the  possibilities  of  the  Fourteenth  Amend- 
ment, it  is  interesting  to  note  that,  though,  between  1868 
and  1873,  nimierous  State  statutes  attempting  to  tax 
property  outside  the  State  had  been  held  to  be  imconsti- 
tutional,  in  no  one  of  these  cases  was  the  Court's  decision 
based  on  the  ground  that  such  a  statute  was  violative 
of  the  Fourteenth  Amendment.*  In  each,  the  Court 
founded  its  doctrine  on  the  general  imderlying  principles 
of  government;  "where  there  is  jurisdiction  neither  as 
to  person  nor  property,  the  imposition  of  a  tax  would  be 
ultra  vires  and  void,'*  said  Judge  Swayne  in  St.  Louis  v. 
Ferry  Company ^  11  Wall.  423.  Similarly  in  the  famous 
case  of  Loan  Association  v.  Topeka,  20  Wall.  655,  as  late 
as  1875,  in  which  the  constitutional  validity  of  a  State 
statute  authorizing  taxation  to  pay  city  bonds  issued 
in  aid  of  a  bridge  factory  corporation  was  involved, 
neither  the  counsel  nor  the  Court  invoked  the  Four- 
teenth Amendment,  though  it  was  clearly  applicable. 
Judge  Miller,  in  holding  the  statute  invalid,  made  the 

1  Kennard  v.  Louitiana  (1876),  92  U.  S.  480 ;  Walker  v.  Saunnd  (1876),  92  U.  S. 
90;  Pearson  ▼.  Yev)daU  (1877),  95  U.  S.  294;  Damdson  v.  New  Orleans  (1878),  96 
U.  S.  97;  KirOand  ▼.  HotehkUs  (1879),  100  U.  S.  491 ;  KeUy  v.  PiUsburgh  (1881), 
104  U.  S.  78;  Hagar  v.  RedamatUm  District  (1884),  111  U.  S.  701 ;  Provident  Inr 
stUuHon  etc.  ▼.  Jersey  City  (1886),  113  U.  S.  506;  WurU  ▼.  Hoagland  (1885),  114 
U.  S.  606;  Spencer  v.  Merchant  (1888),  125  U.  S.  387. 

s  See  Railroad  Company  v.  Jackson  (1869),  7  Wall.  262;  Cleveland  etc.  R,  R.  v. 
Pennsylvania  (1878),  15  Wall.  300;  see  also  Pennoyer  v.  N^  (1878),  95  U.  S.  714. 


292  THE  SUPREME  COURT 

classic  observation  that  "to  lay,  with  one  hand,  the 
power  of  the  government  on  the  property  of  the  citizen 
and  with  the  other  to  bestow  it  upon  favored  individ- 
uals to  aid  private  enterprises  and  build  up  private  for- 
tunes, is  none  the  less  a  robbery  because  it  is  done  under 
the  forms  of  law  and  is  called  taxation.  This  is  not 
legislation.  It  is  a  decree  under  legislative  forms.** 
But  he  decided  the  case,  not  on  the  ground  that  there 
was  lack  of  "due  process",  but  that  there  was  a  limita- 
tion on  the  power  of  taxation  "which  grew  out  of  the 
essential  nature  of  all  free  governments",  — "implied 
reservations  of  individual  rights,  without  which  the 
social  compact  could  not  exist,  and  which  are  respected 
by  all  governments  entitled  to  the  name."  ^  A  resort 
to  the  general  principles  of  free  governments  for  the 
foundation  of  a  Federal  legal  doctrine  was  a  hazy  and 
unsatisfying  method  of  dealing  with  the  case.* 

That  the  Court  intended  to  proceed  very  cautiously 
in  its  interpretation  of  the  phrase  "due  process"  was 
shown  by  its  opinion  in  Davidson  v.  New  Orleans^  96 
U.  S.  97,  in  1878,  in  which  Judge  Miller  stated  that : 
"Apart  from  the  imminent  risk  of  a  failure  to  give  any 
definition  which  would  be  at  once  perspicuous,  compre- 
hensive and  satisfactory,  there  is  wisdom,  we  think,  in 
the  ascertaining  of  the  intent  and  application  of  such 
an  important  phrase  in  the  Constitution,  by  the  gradual 

^  Frederic  N.  Judson  in  The  Judiciary  and  the  People  (1918),  said :  "This  opinion 
in  the  Loan  Association  Case,  though  rendered  after  the  Fourteenth  Amendment, 
was  not  based  upon  the  guarantees  of  individual  rights  therein  contained.  We 
shall  see  in  the  discussion  of  this  Amendment  that  its  construction  has  really  ren- 
dered academic  this  invocation  of  natural  law ;  as  both  of  the  instances  cited  by 
Judge  Miller  of  violation  of  domestic  and  property  rights  would  be  annulled  under 
the  due  process  of  law." 

'  Three  years  later,  in  Davidson  v.  New  Orisons,  95  U.  S.  97,  Judge  Miller,  in  a 
case  of  writ  of  error  to  a  State  Court  said,  in  declining  to  hold  a  State  law  violative 
of  the  Fourteenth  Amendment :  "It  may  possibly  violate  some  of  those  principles 
of  general  constitutional  law  of  which  we  could  take  jurisdiction,  if  we  were  sitting 
in  review  of  a  Circuit  Court  of  the  United  States,  as  we  were  in  Loan  Aseociation  v. 
Topeka,*' 


WAITE  AND  FOtJRTEENTH  AMENDMENT    29S 

process  of  judicial  inclusion  and  exclusion,  as  the  cases 
prosecuted  for  decision  shall  require,  with  the  reasoning 
on  which  such  decision  may  be  founded."  He  ad- 
mitted that  "if  it  were  possible  to  define  what  it  is  for  a 
State  to  deprive  a  person  of  life,  liberty  and  property 
without  due  process  of  law,  in  terms  which  would  cover 
every  exercise  of  power  thus  forbidden  to  the  State, 
and  exclude  those  which  are  not,  no  more  useful  con- 
struction could  be  furnished  by  this  or  any  other  Court 
to  any  part  of  the  fundamental  law/'  But  he  warned 
suitors  and  counsel  that  the  phrase  clearly  did  not  in- 
clude a  case  where  a  party  had,  by  the  laws  of  the  State, 
"a  fair  trial  in  a  Court  of  Justice,  according  to  the  mode 
of  proceeding  applicable  to  such  a  case/'  Gradually, 
later,  the  Court's  attitude  towards  the  phrase  "due 
process"  wystallized  into  sustaining  any  proceeding 
authorized  by  a  State  Legislature  which  was  not  arbi- 
trary and  which  in  general  preserved  principles  of  justice 
and  fairness ;  and  it  might  finally  be  summed  up  in  the 
phrase  "giving  a  square  deal/'  ^  How  little  inclined 
the  Court  was  to  restrict  changes  in  legal  procedure 
was  shown  in  Hurtado  v.  Calif omia^  110  U.  S.  616,  in 
1884,  in  which  the  Court  was  confronted  with  a  new  and 
vitally  important  question  —  whether  the  Due  Process 
Clause  prevented  a  State  from  dispensing  with  indict- 
ment by  a  grand  jury  in  cases  of  felony.  In  a  memo- 
rable opinion  by  Judge  Matthews,  one  of  the  landmarks 
of  our  law,  it  was  held  that  the  State  powers  were  not  so 
restricted,  and  that  the  phrase  "due  process"  in  the 
Fourteenth  Amendment  was  intended  only  to  secure 
"those  fundamental  principles  of  liberty  and  justice 

^  See  injHit  ¥M-¥n,  '*  Amid  the  labyrinth  of  decuions  .  .  .  the  principle  that  has 
guided  the  Court  u  that  the  object  of  the  Amendment  was  to  prevent  arbitrary 
action.  Action  is  not  arbitrary  if  the  discrimination  is  founded  upon  a  reasonable 
basis  and  has  relation  to  the  subject  matter  of  the  legislation."  Juiieial  ConttniC' 
turn  of  the  Fourteenth  AmettdmerUt  by  Judge  Francis  J.  Swayse,  Harv,  Law  Asp. 
(1912),  XXVI. 


294  THE  SUPREME  COURT 

which  lie  at  the  base  of  all  our  civil  and  political  insti- 
tutions *'  ;  but  that  it  was  not  intended  to  confine  State 
legislation  simply  to  those  forms  and  proceedings  which 
had  been  sanctioned  by  usage.  '^To  hold  that  such  a 
characteristic  is  essential  to  due  process  of  law,  would 
be  to  deny  every  quality  of  the  law  but  its  age,  and 
to  render  it  incapable  of  progress  or  improvement.  It 
would  be  to  stamp  upon  our  jurisprudence  the  un- 
changeableness  attributed  to  the  laws  of  the  Medes  and 
Persians.  .  .  .  This  flexibility  and  capacity  for  growth 
and  adaptation  is  the  peculiar  boast  and  excellence  of 
the  conunon  law.  .  .  .  Any  legal  proceeding  enforced 
by  public  authority,  whether  sanctioned  by  age  and  cus- 
tom or  newly  devised  in  the  discretion  of  the  Legislative 
power,  in  furtherance  of  the  general  public  good,  which 
regards  and  preserves  these  principles  of  liberty  and 
justice,  must  be  held  to  be  due  process  of  law." 

On  the  question  as  to  what  action  of  a  State  was  to  be 
held  to  "deprive"  a  person  of  his  property,  the  Court 
limited  very  decidedly  the  scope  of  the  protection  which 
the  Fourteenth  Amendment  had  been  expected  to  pro- 
vide, by  holding  in  a  series  of  cases  that  an  act  which 
came  within  the  scope  of  the  State  police  power  could 
not  be  termed  a  deprivation  of  property.  In  the  first 
case  presenting  this  issue,  Bartemeyer  v.  loway  18  Wall. 
129,  which  had  been  argued  with  the  Slaughterhouse 
CaseSy  but  which  was  not  decided  until  a  year  later,  the 
Court  upheld,  in  1874,  a  State  liquor  law  prohibiting 
sale  of  liquor  owned  at  its  passage,  as  a  proper  exercise 
of  the  police  power.  Thirteen  years  later,  in  1887,  an 
even  more  radical  prohibition  law  was  upheld  in  Mugler 
V.  Kansas,  123  U.  S.  123,  argued  by  George  G.  Vest 
against  Joseph  H.  Choate;  and  the  Court  practically 
asserted  that  statutes  passed  in  the  exercise  of  the  State 
police  power  would  be  upheld  in  every  case  unless  the 


WAITE  AND  FOURTEENTH  AMENDMENT    295 

statute  "purporting  to  have  been  enacted  to  protect  the 
public  health,  the  public  morals,  or  the  public  safety  has 
no  real  or  substantial  relation  to  these  objects,  or  is  a 
palpable  invasion  of  rights  secured  by  the  fundamen- 
tal law."  ^ 

The  anti-Chinese  ordinances  of  San  Francisco  served 
as  a  means  of  further  developing  the  limits  of  the  State 
police  power.  In  1885,  a  municipal  ordinance  of  San 
Francisco  prohibiting  laundry  work  at  night,  but  in 
reality  directed  solely  against  the  Chinese,  was  held  by 
Judge  Field  to  be  constitutional,  in  Barhier  v.  Connolly, 
lis  U.  S.  27.  It  was  held  that  the  Fourteenth  Amend- 
ment was  not  designed  "to  interfere  with  the  power  of 
the  State,  sometimes  termed  its  *  police  power',  to  pre- 
scribe regulations  to  promote  the  health,  peace,  morals, 
education,  and  good  order  of  the  people,  and  to  legislate 
so  as  to  increase  the  industries  of  the  State,  develop 
its  resources  and  add  to  its  wealth  and  prosperity.'' 
And  in  Soon  Hing  v.  Crowley,  US  U.  S.  70S,  Judge  Field, 
in  sustaining  a  similar  ordinance,  held  that  the  liberty 
guaranteed  by  the  Constitution  was  "liberty  regulated 
by  just  and  impartial  laws",  and  he  also  held  that  the 
motives  which  inspired  the  ordinance  could  not  be  in- 
quired into  by  the  Courts  so  long  as  its  enforcement  was 
undertaken  without  unjust  discrimination.  A  Pennsyl- 
vania statute  suppressing  the  manufacture  of  oleomar- 
garine was  held  not  to  constitute  a  deprivation  of  either 
liberty  or  property,  in  Powell  v.  Pennsylvania,  127  U.  S. 
678,  in  1888.  In  two  cases,  the  Court  sustained  State 
regulation  of  the  operation  of  railroads  as  being  within 
the  police  power,  and  not  a  deprivation  of  property, 
though  imposing  considerable  expense  on  the  roads. 
Railroad  Co.  v.  Richmond,  96  U.  S.  521,  in  1878,  and 

1  See  also  FoHef  v.  Kansas  (1884),  112  U.  S.  201 ;  Sdimidi  v.  CM  (1886),  119 
U.  S.  886 ;  Kidd  v.  Pearson  (1888),  188  U.  S.  1. 


296  THE  SUPREME  COURT 

Missouri  Pacific  Ry.  Co.  v.  Humes,  115  U.  S.  512,  in 
1885. 

But  it  was  in  the  class  of  cases  involving  the 
power  of  the  State  to  regulate  the  rates  and  charges 
of  railroad  and  other  corporations,  that  the  Court 
most  profoundly  afiFected  the  course  of  American 
history.  By  the  Granger  Cases  decided  in  1877, 
the  proponents  of  the  Amendment,  who  had  in- 
tended to  provide  a  sweeping  protection  of  civil 
rights  against  State  aggression,  saw  its  operation  re- 
duced by  judicial  construction  to  a  very  narrow  field. 
For  a  correct  understanding  of  the  revolutionary  and 
historic  decision  in  these  Granger  Cases,  the  whole  eco- 
nomic history  of  the  country  in  the  eight  years  following 
the  Civil  War  must  be  carefully  studied.  Briefly  stated, 
the  cases  originated  as  follows.  During  the  years  1870- 
1871,  there  had  swept  through  the  Central  West  a 
movement  known  as  the  Grange,  directed  largely 
against  the  railroads  and  other  large  semi-public  cor- 
porations such  as  the  grain  elevators.  Somewhat  coin- 
cident with  the  Greenback  movement,  it  was  the  result 
of  the  high  rates  and  undue  discriminations  by  railroads 
and  of  the  corporate  financial  excesses,  abuses  and  legis- 
lative corruptions  of  the  period.^  "The  State  must 
either  absorb  the  railroads  or  the  railroads  wiU  absorb 
the  State"  was  the  Granger  cry;  and  from  it  there 
originated  radical  legislation  in  Illinois,  Wisconsin, 
Minnesota,  Iowa  and  other  of  the  States  of  the  Central 
West,  fixing  maximum  rates  for  the  railroads,  and  (in 
Illinois)  for  grain  elevators,  and  imposing  heavy  fines 
and  triple  to  quintuple  damages,  attorneys'  fees  and  costs 
on  any  corporation  failing  to  comply  with  the  rates  fixed 
by  the  State.    As  described  by  a  leading  Western  paper 

^  See  Th0  Rise cf  the Oranger  Movement,  The  Outeomeqfihe  Granger  Movement,  by 
Charies  W.  Pienon,  Popular  Science  Mo,  (1887),  XXXII ;  Claee  Struggles  in  Amer- 
ica  (1907),  by  A.  M.  Simoiu ;  The  Granger  Movement  (1913),  by  Solon  Juftvs  Bvck. 


WAITE  AND  FOURTEENTH  AMENDMENT    297 

in  1877 :  ^^This  legislation  had  its  origin  in  the  unques- 
tionable extortions  of  the  railways.  For  several  years 
following  the  war,  the  majority  of  the  roads  were  run 
on  the  principle  that  there  must  be  dividends  amount- 
ing at  least  annually  to  ten  per  cent/'  This  resulted  in 
the  least  possible  service  and  in  excessive  rates,  especially 
where  there  was  no  competition.  "The  acconmiodation 
of  the  public  was  left  out  of  sight  altogether ;  and  the 
monopoly,  standing  on  the  high  ground  of  irrepealable 
charters  and  vested  privileges,  was  defiant  and  un- 
yielding. The  outraged  popular  feeling  at  last  took 
form  in  the  way  of  public  meetings,  conventions  and 
organizations,  which  in  due  time  resulted  in  legislative 
enactments."^  The  significance  and  importance  of 
this  Granger  movement  was  that  it  aroused  the  atten- 
tion of  the  American  people  to  the  fact  that  there  was  a 
railroad  problem  which  free  competition  could  not  solve. 
Moreover,  it  constituted  the  first  considerable  attempt 
to  use  representative  government  as  a  means  of  limiting 
the  power  of  property  owners  to  manage  their  business 
m  their  own  way.*  "  The  railroad  corporations  were  in 
fact  rapidly  assimiing  a  position  which  could  not  be 
tolerated,"  wrote  a  prominent  authority  on  railroad 
problems.  "Sheltering  themselves  behind  the  Dart- 
mouth College  decision,  they  practically  undertook  to 
set  even  public  opinion  at  defiance.  ...  In  other 
words,  they  thoroughly  got  it  into  their  heads  that  they 
as  conmion  carriers  were  in  no  way  bound  to  afford 
equal  facilities  to  all,  and  indeed  that  it  was  in  the  last 
degree  absurd  and  unreasonable  to  expect  them  to  do  so. 

^  Chicago  Tribune,  Maidi  S,  1877.  "In  the  matter  of  railroad  abuses,  no  region 
has  felt  the  shoe  pinch  more  than  has  the  portion  of  the  West  traversed  by  the  great 
trunk  lines  system.  A  few  cents*  fluctuation  in  grain  rates  made  all  the  difference 
to  the  farmers  between  a  good  and  a  losing  year."  State  Legtelatum  Reipdating 
Railroad  Traffic,  by  Charles  C.  Savage,  Amer,  Law  Reg.  (1884),  n.  a.,  XXIII. 

^Railroadi,  Their  Origin  and  Probleme  (1885),  by  Charles  Francis  Adams; 
Undereurrente  in  American  PolUice  (1915),  by  Arthur  T.  Hadley,  68,  note. 


298  THE  SUPREME  COURT 

The  Granger  method  was  probably  as  good  a  method  of 
approachmg  men  m  this  frame  of  mind  as  could  have 
been  devised."  ^ 

The  railroads  and  investors  very  reasonably  regarded 
the  legislation  with  the  greatest  alarm.  '"That  it  has 
efiFectually  destroyed  all  future  railroad  ^iterprises,  no 
one  who  is  acquainted  with  its  efiFect  in  money  centers 
will  for  a  moment  doubt/'  wrote  the  president  of  one  of 
the  roads  in  April,  1874.  To  test  the  validity  of  these 
various  Granger  laws,  suits  had  been  promptly  insti- 
tuted by  the  railroads  and  other  corporations  affected, 
as  early  as  1871 ;  but  for  various  reasons  they  were  not 
reached  for  argument  in  the  Supreme  Court  until  the  fall 
of  1875.  Meanwhile,  the  panic  of  1873,  combined  with 
unscrupulous  manipulation  and  unskillful  management, 
had  left  the  railroads  of  the  country  in  a  disastrous 
financial  condition.  As  a  Western  newspaper  said  in 
1877,  describing  the  changed  conditions:  '"The  panic 
had  altered  the  complexion  of  the  railroad  monopoly. 
It  revolutionized  the  transportation  business.  It  had 
reduced  railway  securities  and  railway  credits.  It  had 
put  one  half  the  railway  mileage  of  the  country  into 
practical  bankruptcy.  .  .  .  Railroads  have  become  an 
article  of  merchandise,  sold  regularly  at  auction,  not  by 
capital  stock  but  according  to  value,  including  a  pre- 
ferred portion  of  debt.  The  expenses  of  running  rail- 
roads have  been  reduced;  dividends  are  fewer  and 
smaller.  Retrenchment  has  become  essential  to  life. 
.  .  .  The  rates  have  so  fallen  that  the  popular  com- 
plaint which  led  to  State  legislation  no  longer  exists."  ^ 
Since,  therefore,  the  reasons  for  the  Granger  laws  were 

^  The  Railroad  Quettion  (1899),  by  William  Larrabee  (Ez-Goyernor  of  Iowa). 
*  Ckieago  Tribune,  March  S,  18,  1877.    Defaults  in  raihroad  bonds  prior  to  1873 
.  were  $184,684,800  by  thirty-seven  raihroad  companies ;  up  to  1876  defaults  amounted 

N  to  $814,416,000  by  two  hundred  and  one  companies.    The  total  bonded  railroad 

debt  in  1876  was  $2,175,000»000 ;  so  that  the  percentage  of  default  was  80.7%. 


WAITE  AND  FOURTEENTH  AMENDMENT    299 

disappearing,  through  reform  of  their  own  methods  by 
the  raiboads,  and  since  the  existence  of  these  laws  had 
retarded  raiboad  extension  and  development  by  reason 
of  the  distrust  of  investors  in  railroad  securities,  and 
since  some  of  the  States  had  already  modified  their 
legislation,  there  was  little  belief  in  the  general  com- 
munity that  the  laws  would  be  upheld  by  the  Court. 
The  conservative  and  business  element,  especially  in 
the  East,  had  violently  denounced  the  laws  for  many 
years,  and  had  expressed  confidence  in  their  overturn  by 
the  Court.  In  1874,  the  Nation^  stating  that  the  matter 
was  soon  to  come  on  for  argument,  said  that  it  was  *^of 
the  last  importance  that  it  should  be  there  determined 
not  only  correctly  but  in  such  a  way  as  to  inspire  public 
confidence  in  the  decision.  The  Court,  for  the  first 
time  almost  in  its  history,  is  out  of  poUtics.  The  Judges 
are  not  Democrats  or  Republicans;  nor  are  they  di- 
vided, as  the  country  once  was,  on  the  question  of 
internal  improvements.  Since  the  lamentable  fiasco  of 
the  Legal  Tender  decision,  the  Court  has  shown  a 
marked  tendency  to  conservatism  and  self-respect.  In 
construing  the  new  Amendments  to  the  Constitution,  it 
has  shown  a  very  laudable  determination  to  cling  to  old 
and  well-settled  maxims  of  interpretation.  The  coun- 
try will  look  with  deep  interest  to  its  decision  in  this 
case.'*  ^  An  able  writer  in  the  American  Law  Review  in 
1875,  after  a  thorough  review  of  the  constitutional  ques- 
tions, pronounced  the  State  laws  to  be  clearly  invalid,* 
and  he  concluded :  * '  The  late  war  left  the  average  Amer- 

1  Editorials  in  the  Nation :  Sept.  24, 1874,  The  Right  to  Confitcate;  Oct.  20, 1874, 
How  Will  the  United  States  Supreme  Court  Decide  the  Granger  Cases  f  Jan.  28,  1875, 
The  Farmers  and  the  Supreme  Courts  stating  that  the  existence  of  the  Potter  Law  in 
^^^sconsin  affects  financing  of  the  raihroads  and  ^inting  out  the  inconsistency  of  the 
position  of  the  farmers,  since  "formerly,  in  order  to  invalidate  bonds  issued  by 
counties,  they  asked  that  railroads  be 'held  purely  private  enterprises,  and  now  they 
want  them  held  to  be  public  highways,  entitled  to  only  such  toUs  as  the  public 
deems  reasonable."     See  also  editorial,  Jan.  27, 1876,  The  Granger  Collapse. 

*  Ths  PoUer  Ad  at  Washington,  Amer.  Law  Res.  (Jan.,  1875),  IX. 


SOO  THE  SUPREME  COURT 

ican  politician  with  a  powerful  desire  to  acquire  prop- 
erty from  other  people,  without  paying  for  it.  A  suc- 
cession of  schemes,  too  familiar  to  recapitulate  here, 
have  been  tried,  and,  after  hard  struggles,  have  been  de- 
feated by  the  honest  conmion  sense  of  the  community. 
We  have  sufficient  faith  in  the  speedy  clarification  of 
ideas,  among  the  honest  advocates  of  the  so-called  Gran- 
ger laws,  to  feel  confident  that  this  assault  upon  private 
property  will  soon  lose  their  support,  and  be  publicly 
classed  with  the  exploded  fallacies  of  repudiation  and 
unlimited  greenbacks,  before  the  illegality  of  the  Potter 
law  is  adjudicated  at  Washington.  When  that  decision 
is  reached,  we  believe  it  will  then  be  received  with  general 
favor  throughout  the  whole  country.  It  is  necessary, 
in  order  to  restore  public  confidence  in  the  rights  of 
private  property  now  severely  shaken."  Later,  it 
stated  that  it  had  never  believed  ^'that  a  movement 
would  succeed  in  America  which  was  really  directed, 
not  against  abuses,  but  against  the  rights  of  property. 
.  •  .  When  the  Grangers  had  once  proclaimed  that 
their  object  was  to 'fix  rates'  .  .  .  it  was  perfectly  dear 
that  the  Granger  movement  was  rank  communism.'' 

Some  of  the  so-called  Granger  CaseSy  which  related  to 
railroad  rates,  were  argued  in  October  and  November, 
1875;  other  of  the  railroad  cases,  together  with  the 
grain  elevator  case,  were  argued  in  January,  1876.  Very 
able  counsel  appeared  in  opposition  to  the  constitution- 
ality of  the  State  legislation  —  amongst  them,  Orville 
H.  Browning,  Frederick  T.  Frelinghuysen,  William  M. 
Evarts,  Charles  B.  Lawrence,  B.  C.  Cook,  E.  W. 
Stoughton  and  John  W.  Gary.  In  the  principal  case, 
Munn  V.  Illinois y  94  U.  S.  IIS,  there  was  involved  an 
Illinois  statute,  enacted  in  1871,  in  compliance  with  a 
provision  of  the  Illinois  Constitution  (adopted  in  1870) 
requiring  the  Legislature  to  pass  laws  "'for  the  protec- 


WAITE  AND  FOURTEENTH  AMENDMENT    801 

tion  of  producers,  shippers  and  receivers  of  grain  and 
produce."  This  statute,  fixing  the  maximum  charges 
on  storage  of  grain  in  all  grain  elevators  and  public 
warehouses,  was  now  vigorously  attacked  as  a  depriva- 
tion of  life,  liberty  and  property  without  due  process  of 
law,  in  violation  of  the  Fourteenth  Amendment. 

On  March  1,  1877,  the  Court  rendered  its  decision, 
through  Chief  Justice  Waite.  It  pointed  out  that  the 
question  presented  by  this  case  was  the  meaning  of  the 
word  ^^ deprive"  as  used  in  the  Amendment,  and  that  to 
determine  its  signification,  ^'it  is  necessary  to  ascertain 
the  effect  which  usage  has  given  it,  when  employed  in 
the  same  or  a  like  connection."  After  a  long  historical 
discussion,  the  Court  finally  reached  the  conclusion 
that  the  law  was  as  follows :  that  when  property  had  be- 
come clothed  with  a  public  interest,  the  owner  must 
submit  to  be  controlled  by  the  public  for  the  common 
good ;  and  the  general  test  as  to  the  character  and  sta- 
tus of  property  was  stated  to  be  that :  "Property  does 
become  clothed  with  a  public  interest  when  used  in  a 
manner  to  make  it  of  public  consequence,  and  affect  the 
community  at  large.  When,  therefore,  one  devotes  his 
property  to  a  use  in  which  the  public  has  an  interest,  he, 
in  effect,  grants  to  the  public  an  interest  in  that  use, 
and  must  submit  to  be  controlled  by  the  public  for  the 
common  good,  to  the  extent  of  the  interest  he  has  thus 
created."  Applying  this  test  to  the  grain  elevator  busi- 
ness, the  Court  pointed  out  that  such  business,  estab- 
lished twenty  years  prior,  had  assimied  immense  propor- 
tions, was  practically  a  monopoly,  and  affected  the  whole 
commerce  in  grain  of  seven  or  eight  States  of  the  West. 
"  It  is  a  business  in  which  the  whole  public  has  a  direct 
and  positive  interest.  ...  It  presents,  therefore,  a 
case  for  the  application  of  a  long-known  and  well- 
established  principle  in  social  science,  and  this  statute 


802  THE  SUPREME  COURT 

simply  extends  the  law  so  as  to  meet  this  new  develop- 
ment of  commercial  progress."  That  the  power  might 
be  abused,  the  Court  said,  was  no  argument  against  its 
existence.  "For  protection  against  abuses  by  Legisla- 
turesy  the  people  must  resort  to  the  polls,  not  to  the 
Courts."  Judge  Field  alone  dissented,  stating  that  it 
appeared  to  him  "that  the  Court  holds  that  property 
loses  something  of  its  private  character  when  employed 
in  such  a  way  as  to  be  generally  useful.  .  .  .  The  doc- 
trine .  .  .  that  whenever  one's  property  is  used  in  such 
a  manner  as  to  afiFect  the  conmiunity  at  large,  it  be- 
comes by  that  fact  clothed  with  a  public  interest  .  .  . 
appears  to  me  to  destroy,  for  all  useful  purposes,  the 
efficacy  of  the  constitutional  guaranty."  He  pointed 
out  that  the  public  had  an  interest  in  many  private  en- 
terprises and  business,  in  the  sense  in  which  the  Court 
had  used  the  term,  and  that  to  uphold  the  right  of  the 
public  to  regulate  the  prices  and  rates  of  such  business 
would  destroy  all  rights  of  private  property. 

On  the  same  day  that  the  Court  sustained  the  grain 
elevator  rate  law,  it  upheld  the  validity  of  the  laws  of 
Illinois,  Wisconsin,  Iowa  and  Minnesota  fixing  maxi- 
mimi  rates  for  passengers  and  freights  on  all  railroads 
operating  in  those  States.^  While  in  these  cases  the 
laws  had  been  claimed  not  only  to  violate  the  Four- 
teenth Amendment,  but  also  the  Commerce  Clause  and 
the  Impairment  of  Obligation  of  Contract  Clause  of  the 
Constitution,^  the  Court  held  that  the  State  police 
power  was  supreme  in  respect  to  regulation  of  these 
public  corporations ;  that  the  State  legislation  passed 
by  virtue  of  that  power  did  not  infringe  any  provision 

^  Chicago,  Burlington  &  Quincy  R.  R.  y.  Ioido,  04  U.  S.  155 :  Peik  y.  Ckieago  A 
Nortkwwtem  R.  R.,  04  U.  S.  164 ;  Chicago,  MUtoaukee  &  St  Patd  y.  AcJdy,  94  U.  S. 
179;  Winona  A  St.  Peter  R,  R.  y.  Blake,  9i  U.S.  180. 

*  See  Charter  Contrada  and  the  Regvlatum  qf  Rates,  by  Charles  6.  Fenwick» 
Law  Rev.  (1911),  IX. 


WAITE  AND  FOURTEENTH  AMENDMENT    SOS 

of  the  Federal  Constitution ;  and  that  the  corporations 
being  *' engaged  in  a  public  employment  afiFecting  the 
public  interest"  had  been  and  were  subject  to  legisla- 
tive control  as  to  rates,  from  the  moment  of  their  in- 
corporation. Judge  Field,  again  dissenting,  said  that 
the  questions  presented  were  "of  the  gravest  impor- 
tance, and  their  solution  must  materially  affect  the 
value  of  property  invested  in  railroads  to  the  amount  of 
many  hundreds  of  millions,  and  will  have  a  great  influ- 
ence in  encouraging  or  repelling  future  investments  in 
such  property/'  He  regretted  that  though  the  Court 
had  an  opportunity  to  define  the  limits  of  the  power  of  a 
State,  "  so  that  on  the  one  hand  the  property  interests 
of  the  stockholder  would  be  protected  from  practical 
confiscation,  and  on  the  other  hand,  the  people  would 
be  protected  from  arbitrary  and  extortionate  charges", 
the  Court  had  not  done  this,  but  had  simply  applied  the 
doctrine  of  the  Grain  Elevator  Case.  The  decision,  he 
said,  "in  its  wide  sweep  practically  destroys  all  the 
guaranties  of  the  Constitution  and  of  the  common  law." 
Though  the  decision  of  the  Granger  Cases  did  not 
result  in  the  destruction  of  private  business,  as  Judge 
Field  prophesied,  it  was,  nevertheless,  revolutionary  in 
the  history  of  law ;  it  permanently  turned  the  economic 
and  social  development  of  the  United  States;  and 
it  established  forever  the  power  of  the  States  over 
the  corporations  and  over  monopolizing  wealth.  That 
these  results  were  fully  appreciated  at  the  time  is 
clearly  shown  in  the  contemporary  newspaper  criticism. 
"These  decisions  seem  to  make  the  broadest  possible 
affirmation  of  the  right  of  the  State  to  regulate  its  own 
commerce,  and  their  importance  can  hardly  be  over- 
estimated," said  the  New  York  Tribune,  and  in  another 
editorial  on  "Property  and  the  Supreme  Court",  it 
stated  that  the  decision  showed  that :  "  The  limits  within 


S04  THE  SUPREME  COURT 

which  public  opinion  is  tending  to  conjfine  the  power  of 
expropriation  for  reasons  of  public  utility  are  extremely 
vague  and  liberal.  .  .  .  The  statement  of  these  doc- 
trines willy  no  doubt,  startle  many  people,  especially  in 
the  Eastern  Section  of  the  country,  though  it  is  really 
a  logical  result  of  the  general  principle  of  expropriation. 
...  It  is  an  advanced  guard  of  a  sort  of  enlightened 
socialism."  The  Nation  feared  that  the  decision  would 
give  a  strong  stimulus  to  threatening,  "striking'*  legis- 
lation; it  pointed  out  that  investors  must  pay  dose 
attention  to  the  consequences  of  the  decision;  it  de- 
plored the  assumption  that  "a  common  carrier  is  ex  vi 
termini  a  common  rogue  " ;  but  it  finally  concluded  that 
though  "two  years  ago,  the  judgment  would  have 
created  a  good  deal  of  excitement  and  probably  have 
had  a  serious  effect  on  the  market  value  of  railroad  prop- 
erty in  the  States  from  which  the  appeals  were  taken, 
since  then,  the  hostility  to  the  railroads,  in  States  in 
which  the  legislation  fixing  rates  originated,  has  dis- 
appeared; and  the  Granger  Movement  itself,  as  a 
political  force  has  collapsed,  so  that  the  decision  is  not 
now  likely  to  have  any  marked  immediate  influence.'*  ^ 
Other  conservative  papers  of  the  East  hotly  attacked 
the  decision  as  supporting  "oppression**,  "thievery**, 
and  "brigandage**  by  State  Legislatures,  and  as  semi* 
socialistic  in  its  tendencies ;  and  their  view  was  summed 
up,  six  years  later,  by  a  noted  jurist,  in  the  statement 
that  the  decision  in  the  Munn  Case  ^^stands  a  menace  to 
business  and  material  interests  of  all  kinds.  No  other 
decision  has  ever  been  made  in  the  course  of  our  judicial 
history  —  not  even  excepting  the  notorious  Dred  Scott 
Ca^e  —  which  threatens  such  disastrous  consequences 
to  the  future  welfare  and  prosperity  of  the  country. 

^  Nation,  March  8,  1877;  see  ibid.,  aim  March  29,  1877»  editorial  on  "Manage- 
ment of  Corporations",  describing  the  panic  in  England  over  American  railway 
securities. 


WAITE  AND  FOURTEENTH  AMENDMENT    306 

.  .  .  The  Elevator  Case  directly  strikes  at  the  stability 
of  private  property,  at  rights  which  lie  at  the  very 
foundation  of  modem  society  and  civilization.  .  .  .  By 
the  demagogues  who  are  conducting  the  agitation  now 
going  on  throughout  the  country,  it  is  confidently 
appealed  to  and  relied  upon  to  sustain  the  yet  more 
communistic  and  destructive  legislation  which  they 
demand."  ^ 

It  should  also  be  noted  that  a  part  of  the  contempo- 
rary criticism  of  the  decision  was  due  to  the  political 
antagonisms  which  had  arisen  from  the  actions  of  the 
Hayes-Tilden  Electoral  Commission,  on  which  Judges 
Bradley,  Miller  and  Strong  and  Judges  Field  and  Clif- 
ford had  been  sitting,  in  the  month  prior  to  the  date  of 
the  decision.  The  decision  in  the  Granger  Cases  was 
announced  by  the  Court,  on  March  1,  1877,  the  day 
before  the  election  of  President  Hayes  by  Congress  as  a 
result  of  the  action  of  that  Commission.  The  partisan 
excitement  caused  by  this  election  and  by  the  inaugura- 
tion of  Hayes  led  some  newspapers  to  assert  that  public 
confidence  in  the  Judges  had  been  weakened,  and  that 
the  country  would  be  the  less  willing  to  accept  the  doc- 
trines laid  down  by  the  Court. 

The  American  Bar  in  general  was  undoubtedly 
startled  at  the  sweeping  character  of  the  doctrines 
asserted  in  the  decision.*  The  American  Law  Review 
termed  them  "the  most  important  that  have  ever  been 
made,  in  defining  the  power  of  the  States,  though  the 

^  The  Supreme  Court  and  Stale  Repudiation^  by  John  Norton  Pomeroy,  Amer,  Law 
Rev.  (Sept.,  188S),  XVn. 

>  In  1886»  William  P.  Wells,  in  an  address  on  The  DaHmouth  College  Case  befooe 
the  American  Bar  Association,  said :  "These  decisions  assert  principles  which  have 
not  reoeived,  and  as  we  believe,  cannot  receive  the  assent  of  the  most  weighty  pro- 
fessional opinion."  Amer.  Bar  Ass.  Report  (1886) ;  Amer.  Law  Rev.  (18T7-78)» 
XI,  602,  Xn,  859. 

For  an  excellent  description  of  the  conditions  leading  up  to  these  Oranger 
Cases  and  of  the  decisions  themselves,  see  The  Oranger  Cases  and  the  Police  Powers 
by  James  K.  Edsall»  Amer»  Bar  Ass.  Report  (1887). 


S06  THE  SUPREME  COURT 

discussion  leaves  something  to  be  desired,  and  the  judg- 
ment of  the  Bar  seems  to  be  a  good  deal  divided."  It 
admitted,  however,  that  upon  the  whole,  the  decision 
was  justified.  "It  is  very  true  that  the  *  police  power' 
is  open  to  the  suspicion  of  being  a  convenient  phrase  to 
cover  acts,  which  cannot  be  justified  by  the  letter  of  the 
Constitution,  but  which  are  nevertheless  deemed  neces- 
sary. On  the  other  hand  ...  if  railroads  and  eleva- 
tors have  a  constitutional  right  to  charge  what  they 
please,  it  is  just  as  truly  a  right  to  destroy  the  property 
of  others  as  a  right  to  make  noxious  vapors  would  be. 
In  such  cases,  it  is  immaterial  that  there  is  no  statutory 
monopoly,  so  long  as  there  is  actual  power  on  one  side 
and  actual  dependence  on  the  other." 

While  opposed  by  the  ultra-conservative  part  of  the 
community,  the  decisions  were  highly  approved  by  many 
prominent  Eastern  newspapers.  The  Springfield  Re- 
publican derided  the  fears  of  papers  like  the  Nation^  and 
highly  praised  the  decision.  "  This  language  is  a  com- 
plete answer  to  those  who  have  claimed  that  the  Grange 
policy  was  a  policy  of  spoliation  and  robbery.  It  was  a 
harsh  policy,  a  foolish  policy  in  the  extreme  to  which  it 
was  carried  for  a  brief  season ;  but  it  was  undertaken  on 
a  just  principle,  the  principle  that  the  great  agricultural 
industry  of  the  Western  States  had  a  paramount  interest 
in  the  manner  in  which  railroads  and  grain  elevators 
were  managed."  Answering  the  "old  wail,  the  Wall 
Street  nonsense,  that  the  decision  renders  railway  capi- 
tal insecure",  it  pointed  out  that:  "It  was  the  waste, 
extravagance  and  inflation  of  the  railroad-building  era 
which  have  ruined  railroad  enterprises  and  rendered 
capital  invested  insecure.  •  •  .  The  idea  of  the  rail- 
roads was  that,  no  matter  how  many  rings  fattened  off 
from  construction  accounts,  the  communities  using 
the  roads  would  be  bound  to  pay  the  interest  on  their 


WAITE  AND  FOURTEENTH  AMENDMENT    307 

inflated  cost,  forever.  The  people  revolted  and  we 
don't  blame  them.  Nevertheless,  the  bankruptcy  which 
has  overtaken  the  railroads  of  the  country  since  1873 
has  been  due  far  less  to  the  Granger  legislation  than  to 
the  collapse  of  the  credit  of  new  railroads  from  natural 
causes."  Of  the  practical  effect  of  the  decision,  it  said : 
"Viewed  in  the  broad  and  future  aspect,  the  greatly 
increased  strictness  of  railroad  supervision  which  is  the 
fruit  of  the  Grange  era  will  render  railway  capital 
more  secure,  instead  of  less  so.  It  secures  a  degree  of 
publicity  of  railroad  affairs  which  was  never  before  at- 
tempted." Of  the  inmiense  importance  of  the  legal 
doctrines  enounced,  it  said:  "What  seemed  *  thieving' 
and  *  brigandage '  proves  to  have  been  the  vindication  of 
the  power  of  the  State  over  all  the  public  interests  in  its 
borders,  not  merely  by  the  decision  of  the  Supreme 
Court,  but  by  the  revolution  in  the  attitude  of  Legisla- 
tures to  corporate  power  —  from  a  servile  deference 
to  a  sharply  critical  and  almost  inquisitorial  sov- 
ereignty." ^  The  New  York  Herald  said  that  "the  de- 
cision is  equivalent  to  a  revolution  in  the  railroad  busi- 
ness and  .  .  .  has  brought  safety  to  the  country  and 
salvation  to  the  railroads."  It  hailed  with  gratifica- 
tion the  settlement  of  the  "right  of  absolute  control  by 
the  representatives  of  the  people."  "The  time  had 
come  when  either  the  people  would  govern  the  rail- 
roads, or  the  railroads  would  govern  the  people.  The 
Supreme  Court  has  come  to  the  rescue,  and  now  both 
the  public  and  the  railroads  are  safe."  It  pointed  out 
that  the  decision  had  really  increased  the  value  of  rail- 
road investments,  for  the  railroad  financiers  must  now 
"cease  their  incessant  warfare  for  through  traffic  and 
turn  their  attention  to  their  true  source  of  strength  and 
profit,  their  local  business."     And  it  added,  with  some- 

1  SpnmgilM  IUpMi4xm»  Biarch  18, 14, 1877 ;  New  York  Herald,  Biarch  11, 1877. 


308  THE  SUPREME  COURT 

what  undue  optimism :  '"There  is  no  chance  that  the 
people  will  oppress  the  railroads.  .  .  •  The  public  is 
always  just,  in  the  long  run.  Any  unfair  treatment  of 
railroads  by  legislation  will  be  fought  by  the  press,  and 
eventually  remedied  by  the  people."  And  the  general 
sentiment  of  the  community  was  well  summed  up,  later, 
by  the  Independent:  "It  is  safer  and  better  for  the 
public  interest  that  the  final  power  to  determine  the  toU 
rates  of  railroads  should  be  lodged  in  the  Legislature  of 
a  State  than  in  a  private  corporation  that  is  practically 
a  monopoly.  .  .  .  The  knowledge  on  their  part  that  the 
Legislature  can  interpose  its  power  to  correct  abuses  is 
well  calculated  to  restrain  their  cupidity  and  cause  them 
to  deal  fairly  and  properly  with  the  general  public.**  ^ 

The  newspapers  of  the  West,  and  especially  in  the 
States  where  the  problem  of  railroad  rate  regulation  had 
been  the  most  vital  question,  naturally  greeted  the  de- 
cisions with  warm  approval.  The  Chicago  Tribuney 
while  admitting  that,  because  of  financial  changes,  the 
controversy  at  one  time  so  angry  had  lost  much  of  its 
consequence,  stated  that,  nevertheless:  "The  decisions 
of  the  Court  are  no  less  important,  as  determining  the 
principle  of  constitutional  power.  Railroads  and  the 
people  will  now  both  recognize  the  principle  as  settled, 
and  with  such  unanimity  by  the  Courts  as  to  preclude 
all  probability  of  a  change,  during  the  next  half  cen- 
tury." ^    And  it  further  pointed  out  that  "no  man  need 

^  Independent,  May  17,  1888. 

>  Chicago  Tribune,  March  3,  18,  1877.  The  Milwaukee  Sentinel,  March  6, 1877, 
said :  "Had  it  not  been  for  the  rush  of  great  events  during  the  past  week,  no  little 
stir  would  have  been  created  by  the  announcement  of  the  decisions.  .  .  .  We  be- 
lieve that  the  Sentinel  might  be  excused  for  glorifying  itself  at  this  result.  When 
the  subject  was  being  agitated,  the  infallible  press,  which  term  includes  such  papers 
as  the  Nation,  and  the  great  dailies  of  New  York,  Chicago  and  elsewhere,  which 
assume  to  be  Courts  of  last  resort  with  respect  to  all  such  questions,  vehemently  pro- 
tested that  no  power  existed  in  the  Legislatures  of  the  States  to  pass  such  laws.  The 
Sentinel  alone  contended  for  the  existence  of  such  a  power.  ...  In  recompense 
for  the  bitter  denunciation  which  it  thus  brought  upon  itself,  it  has  had  the  satis- 
faction of  seeing  its  view  endorsed."    See  Wisconsin  State  Journal,  March  8^  1877. 


WAITE  AND  FOURTEENTH  AMENDMENT    309 

fear  for  his  property  in  railroads,  so  long  as  those  rail- 
roads recognize  and  act  upon  the  principle  that  the  true 
interest  of  both  public  and  corporations  is  for  the  latter 
to  depend  for  their  profits  on  the  magnitude  of  their 
business,  and  not  upon  the  extortionate  character  of 
their  rates."  The  Western  papers  further  regarded  as 
the  most  striking  and  most  beneficial  phase  of  the  de- 
cisions, "the  breaking  down  of  the  extreme  doctrine  of 
vested  rights  asserted  in  the  Dartmouth  College  Case 
•  .  .  that  parent  of  many  evils,  public  and  private."  ^ 
"The  decisions  in  the  Granger  Cases  have  not  been 
made  too  soon.  They  are  the  preliminary  steps  to  the 
uprooting  of  the  doctrine  that  temporary  Legislatures 
may  enact  irrepealable  or  unalterable  laws  to  bind 
peoples  and  States  indefinitely.  These  decisions  indi- 
cate that  the  reign  of  chartered  monopolies  has  reached 
its  end,  and  that  we  are  approaching  a  recognition  of  the 
inalienability  of  the  political  or  governmental  powers  of 
the  State.  The  sooner  this  recognition  is  made,  the 
better  for  the  corporations  and  for  the  Government.  It 
will  cheapen  special  franchises ;  it  will  take  from  Gov- 
ernments the  corrupting  inducement  to  grant  perpetual 
privileges,"  said  the  Chicago  Tribune.  The  St  Paul 
Pioneer  Press  said  that  the  decisions  "amount  to  a 
complete  revolution  of  what,  a  few  years  ago,  was  re- 
garded as  the  established  law  of  corporations",  —  a  re- 
vision due  to  "  the  rapidly  growing  power  of  these  cor- 
porations, and  the  unlimited  powers  of  oppression  which 
they  would  enjoy,  if  the  logical  results  of  the  Dartmouth 
College  Case  were  insisted  upon  by  the  Courts."  It  was 
pointed  out,  however,  by  this  newspaper  that  the  result 
of  the  decisions  might  be  twofold,  and  that,  while  they 
cured  an  evil,  they  also  made  possible  grave  injury  to 
the  legitimate  business.    On  the  one    hand,    "it  is 

1  Chicaifo  Tribunfi,  March  10, 1877 ;  St  Paul  Pioneer  Preee,  March  IS,  M,  1877. 


810  THE  SUPREME  COURT 

justly  regarded  as  a  great  public  blessing  that  the  mon- 
strous doctrine  has  been  overthrown,  that  one  Legisla- 
ture granting  a  charter  with  special  privileges  to  a  rail- 
road corporation  could  bind  all  subsequent  Legislatures 
and  build  up  a  power  as  sovereign  as  the  State  itself, 
and  forever  beyond  the  reach  of  governmental  control, 
and  place  the  public  at  the  mercy  of  the  corporation  *' ; 
on  the  other  hand,  it  said,  *'  the  decision  places  the  cor- 
porations at  the  mercy  of  the  Legislatures,  deprives  the 
capital  invested  in  railroads  of  all  security,  and  by 
transferring  the  control  of  their  property  interests  from 
the  corporation  to  the  State  Legislature,  renders  it 
liable  to  be  at  any  time  confiscated  by  ignorant,  capri- 
cious or  vindictive  legislation."  To  guard  against  such 
disastrous  effect  upon  railroad  credit,  and  to  protect 
and  encourage  legitimate  investments  of  capital,  this 
paper  urged  that  the  State  Constitution  be  amended, 
"so  as  to  limit  the  power  of  the  Legislature  to  regulate 
railroad  fares,  by  the  common  law  principle  that  they 
are  entitled  to  reasonable  compensation,  to  be  judicially 
ascertained."  ^  Similar  views  were  expressed  in  the 
East  by  the  New  York  Times,  that "  the  objection  prop- 
erly held  is,  that  if  each  State  may  decide  for  itself 
what  rates  are  reasonable,  the  holders  of  railroad  stocks 
and  bonds  can  have  no  guarantee  against  the  application 
of  a  measure  which  might  practically  amount  to  con- 

1  Si,  Paul  Pioneer  Press,  March  IS,  April  5, 1877 :  "Railroads  must  be  placed  on 
some  new  foundation  in  the  organic  law  of  the  State  which,  while  leaving  them  sub- 
ject to  legislative  control,  will  place  such  limitations  on  legislative  regulation  of  rail- 
roads, as  shall  protect  the  capital  invested  in  them  from  being  put  to  hazard  or  sub- 
jected to  confiscation  by  legislative  bodies,  and  from  the  perpetual  peril  of  legislative 
passion,  ignorance  or  caprice/'  See  also  iJbid,,  editorial,  March  24,  1877 :  "There 
can  be  no  question  that  this  decision  must  be  disastrous  to  all  the  railroad  interests 
of  the  West ;  for  it  places  their  whole  financial  foundation  on  the  shifting  sands  of 
legislative  caprice.  How  can  it  be  expected  that  capitalists  ¥nll  invest  their  money 
in  railroads,  when  this  decision  deprives  them  of  any  control  whatever  over  their 
investments,  and  subjects  the  capital  they  put  in,  to  the  hasard  of  being  sw^t 
away  at  any  moment  by  the  breath  of  demagoguery?  Its  calamitous  effects  are 
already  beginning  to  manifest  itself. "    Ihid^  April  5, 1877. 


WAITE  AND  FOURTEENTH  AMENDMENT    811 

fiscation,  •  .  •  and  great  properties  may  be  placed  at 
the  mercy  of  a  power  which  is  essentially  capricious'* ; 
and  it  continued :  "The  tendency  towards  meddlesome 
legislation  to  the  prejudice  of  the  rights  and  property  is 
rendered  more  obnoxious,  by  the  failure  to  exercise  a 
legitimate  authority  in  their  behalf.'*  Accordingly,  it 
argued  that  the  States,  having  now  absolute  power  over 
the  railroads,  should  enact  legislation  directed  at  the 
evils  of  railroad  financing,  and  at  the  policies  "fraught 
with  disaster"  which  had  prevailed  in  financial  circles, 
such  as  improper  leases,  stock  watering  and  secrecy  of 
accounts  and  operations.^ 

Moreover,  as  has  been  well  pointed  out,  a  more 
powerful  force  than  that  of  the  Courts  was  working  to 
protect  the  railroads,  the  investors  and  the  public.  As 
soon  as  the  capitalists  found  that  certain  States  would 
not  allow  them  to  earn  interest  on  railroad  investments, 
they  refused  to  invest  more  money  in  those  States. 
No  new  roads  were  constructed;  the  equipment  that 
wore  out  was  not  replaced.  While  the  rates  at  which 
wheat  was  carried  to  market  remained  low,  a  great  deal 
of  wheat  did  not  get  carried  to  market  at  all,  owing  to 
lack  of  the  physical  means  of  transportation.  The 
Legislatures  could  prevent  high  charges,  but  they  could 
not  prevent  deficient  service ;  and  deficient  service  was 
a  worse  evil  than  high  charges.  Under  these  circum- 
stances tJie  farmers  found  themselves  compelled  to 
allow  to  the  railroads  a  fair  profit.^  Consequently,  the 
very  men  who  had  been  most  active  in  passing  rate  laws, 
from  1870  to  1874,  were  the  readiest  to  repeal  them,  in 
1878 ;  and  even  in  the  States  where  the  Granger  policies 
had  taken  firmest  root,  the  sentiment  developed  rapidly 
in  favor  of  constructive  legislation,  which  should  both 

1  New  York  Times,  March  20, 1877. 

*  Uvdercuneaia  w  Amarioan  PolUics  (1915),  by  Arthur  T.  Hadl^»  70-7L 


812  THE  SUPREME  COURT 

protect  the  public  from  railroad  extortion  and  abuses, 
and  the  railroads  from  unjust  or  confiscatory  laws. 
**The  laws  were  finally  repealed,  not  because  the  people 
had  tired  of  them  or  regarded  them  unwise  or  unjust/* 
wrote  a  Granger  advocate,  "but  because  it  was  hoped 
that  the  Commission  system  would  prove  more  efficient. 
It  was  offered  as  a  compromise  measure,  and  was  ac- 
cepted as  such  by  the  railroad  managers,  who,  in  their 
eagerness  to  rid  themselves  of  the  restrictions  imposed 
by  the  Granger  laws,  gave  every  assurance  of  complete 
submission  to  the  requirements  of  the  proposed  legisla- 
tion/* ^  This  compromise,  embodying  the  new  view  of 
the  public  in  dealing  with  the  railroad  problem,  took  the 
shape  of  statutes  constituting  State  Railroad  Commis- 
sions with  power  to  fix  rates  after  due  investigation,  and 
to  frame  and  administer  other  regulatory  provisions.* 
When  the  validity  of  such  statutes  finally  came  before 
the  Court,  the  composition  of  that  tribunal  had  been 
greatly  changed  by  death  and  resignation;  and  the 
trend  of  its  decisions  was  far  more  Nationalistic  than  it 
had  been  in  the  early  years  of  Waite's  Chief  Justiceship. 
Hence,  in  1886,  when  the  case  of  Stone  v.  Farmers  Loan 
&  Trust  Co.,  116  U-  S.  307,  was  decided,  the  validity  of 
a  Mississippi  statute  providing  for  a  railroad  commis- 
sion with  full  regulatory  powers  was  sustained;  but 
the  Court  further  held  that,  even  though  the  railroad 
charter  granted  a  specific  power  to  the  corporation  to 
fix  its  tolls  and  charges,  this  provision  was  subject  to  the 
implied  condition  that  such  charges  must  be  reasonable ; 
and  for  the  first  time  it  intimated  that  the  question  of 
what  was  a  reasonable  rate  might  be  for  the  Courts  to 

1  The  RaUroad  Quettion  (1899)»  by  Ymwm  Larrabee. 

*  State  Legidatum  Regvlaiing  RaUroad  Trc^,  by  Charies  C.  Savage,  Amer, 
Law  Reg.  (1884),  n.s.,  XXIII;  ConstUuHonalUy  of  Railroad  Commieeions,  by 
Charles  C.  Savage,  Amer.  Law  Rev.  (1885),  XIX;  see  also  FtUey  v.  RaUroad 
(1881),  5  Fed.  641. 


WAITE  AND  FOURTEENTH  AMENDMENT    SIS 

decide,  and  not  (as  Waite  himself  had  stated  nine  years 
previously)  solely  for  the  Legislature.  "From  what 
has  thus  been  said  it  is  not  to  be  inferred  that  this 
power  of  limitation  or  regulation  is  itself  without  limit. 
This  power  to  regulate  is  not  a  power  to  destroy,  and 
limitation  is  not  the  equivalent  of  confiscation.  Under 
pretense  of  regulating  fares  and  freights,  the  State  can- 
not require  a  railroad  corporation  to  carry  persons  or 
property  without  reward ;  neither  can  it  do  that  which 
in  law  amounts  to  a  taking  of  private  property  for  pub- 
lic use  without  just  compensation,  or  without  due  pro- 
cess of  law.''  By  this  significant  sentence,  the  corpo- 
rate interests  of  the  country  and  the  Bar  were  given 
warning  that  the  powers  which  the  Granger  Cases  had 
recognized  as  possessed  by  the  State  Legislatures  were 
by  no  means  as  unlimited  as  had  been  generally  sup- 
posed. Two  years  later,  in  1888,  in  Dow  v.  BetdelmaUy 
125  U.  S.  680,  the  Court  remarked  that  the  facts  of  the 
case  did  not  present  "such  confiscation  as  amounts  to 
a  taking  of  property  without  due  process  of  law." 
Finally,  in  1890,  thirteen  years  after  the  Granger  Cases^ 
the  Court  held  in  Chicago^  Milwaukee  &  St.  Paul 
R.  R.  V.  Minnesota^  134  U.  S.  418,  that  not  only  was  the 
reasonableness  of  rates  a  question  for  ultimate  judicial 
decision,  but  also  that  any  determination  of  rates  by 
legislative  sanction  which  deprived  a  railroad  of  the 
right  to  judicial  investigation  of  their  reasonableness 
was  invalid.  As  has  been  said,  the  Court  "repudiated 
the  doctrine  of  uncontrolled  rights  on  the  part  of  the 
Legislatiu^  to  make  rates,  as  emphatically  as  it 
repudiated  the  doctrine  of  uncontrolled  rights  on 
the  part  of  agents  of  the  corporation  in  the  Granger 
Cases"  ^    Judges  Bradley,  Gray  and  Lamar  dissented, 

^  Railway  Passenger  Bates  (1891),  by  Arthur  T.  Hadley ;  RaUtoay  TraneportaUom 
Us  History  and  its  Law  (1885),  by  Arthur  T.  Hadl<^. 


814  THE  SUPREME  COURT 

on  the  ground  that  the  decision  overruled  the  Granger 
Cases  (which  it  undoubtedly  did) ;  they  held  that  the 
only  limitations  on  the  power  of  the  Legislature 
to  determine  the  reasonableness  of  rates  was  that  its 
action  must  constitute  ^'due  process '\  that  is,  that  it 
must  not  be  arbitrary  or  fraudulent ;  and  they  further 
held  that  the  Fourteenth  Amendment  did  not  forbid 
the  taking  of  property  for  public  uses  without  just  com- 
pensation, but  only  the  taking  without  due  process. 
While  it  was  generally  felt  that  the  opinion  of  the  dis- 
senting Judges  was  the  more  correct  as  a  matter  of 
strict  law,  nevertheless,  this  decision  of  the  Court  in 
1890  was  undoubtedly  the  more  in  accord  with  the 
general  trend  of  judicial  decisions  and  the  temper  of  the 
times.^  ^'Nothing  has  done  more  to  sustain  the  value 
of  American  railroad  securities,*'  wrote  a  well-known 
jurist  in  1895,  "or  to  create  greater  confidence  therein 
than  the  knowledge  that  beyond  and  above  the  sover- 
eign power  of  the  State,  there  is  the  supreme  authority 
of  the  Nation  over  interstate  as  well  as  foreign  com- 
merce, while  beyond  and  above  that  is  the  ultimate 
final  doctrine  of  vested  rights  which  neither  State  nor 
Nation,  jointly  or  separately,  can  invade  or  impair."  * 
On  the  other  hand,  the  radical,  anti-corporation  portion 
of  the  community  regarded  the  decision  with  some  anx- 

^See  espedally  The  Railroad  QueOion  (1809),  by  William  Larrabee;  and  for  a 
oomprehenaion  of  the  interest  in  tJie  subject  at  this  time,  see  Railroads,  Their  Origin 
and  PrdUeme  (1878),  by  Charles  Francis  Adams ;  The  Railtoaye,  the  Farmer  and  the 
FMio  (1885),  by  Edward  Atkinson ;  The  People  and  the  RaUwaye  (1888),  by  James 
Appleton  Morgan ;  The  Relation  of  the  Railroads  to  the  People,  etc.  (1881),  by  Blar- 
shfdl  M.  Kirkham ;  The  RaUwaye  and  the  Republic  (1886),  by  James  F.  Hudson ; 
RaUiaay  Secrecy  and  Trueta  (1890),  by  John  M.  Bonham ;  The  West  and  the  Railroads, 
by  Sidney  Dillon,  North  Amer,  Rev.  (1891),  CLIII;  Railway  Rates  and  Qoeemment 
Control  (1892),  by  Marshall  M.  Kkrkham. 

*  Federal  TMrairds  upon  State  Regulation  of  RaOroad  Rates,  by  \^^lliam  L.  Dana, 
Hatv.  Law  Rev,  (1895),  IX ;  and  as  to  this  whde  railroad  rate  question,  see  especially 
Contemporairy  American  History  (1914),  by  Charles  B.  Beard,  71  et  seq.;  The  Legal, 
Legislative  and  Economie  Battle  over  Railroad  Rates,  by  William  W.  Cook,  Han. 
Law  Rev.  (1921),  XXXV. 


WAITE  AND  FOURTEENTH  AMENDMENT    815 


J 


iety.  It  noted  that  Judge  Brewer,  a  newly-appointed 
Judge,  had  disclaimed  all  belief  in  the  correctness  of  the 
Munn  decision  and  had  said  that  *Hhe  paternal  theory 
of  government  is  to  me  odious."^  "We  have  even 
reason  to  believe  that  unless  the  people  of  the  United 
States  are  on  the  alert,  as  railway  managers  always  are, 
there  is,  with  further  changes  in  the  personnel  of  the 
Court,  danger  of  its  deviating  from  the  sound  principles 
of  law  laid  down  in  its  decision  in  the  Granger  Cases,** 
wrote  Governor  Larrabee  of  Iowa. 

While  that  portion  of  the  Court's  decision  in  Munn  v. 
Illinois  which  announced  the  State  power  to  fix  corporate 
rates  was,  for  many  years,  the  point  on  which  public  in- 
terest centered,  it  was  soon  realized  by  the  Bar  that  the 
broad  views  announced,  relative  to  the  classes  of  business 
subject  to  the  exercise  of  such  power,  were  likely  to  have 
an  even  more  extensive  and  revolutionary  eflFect  upon 
the  course  of  legal  and  economic  history.  In  1888, 
James  Bryce  wrote  that  the  Granger  Cases  "evidently 
represent  a  diflFerent  view  of  the  sacredness  of  private 
rights  and  of  the  powers  of  a  Legislature,  from  that  en- 
tertained by  Chief  Justice  Marshall  and  his  contem- 
poraries. They  reveal  that  current  of  opinion,  which 
now  runs  strongly  in  America,  against  what  are  called 
monopolies  and  the  powers  of  incorporated  companies. 
.  .  .  The  Court  feels  the  touch  of  public  opinion."  * 
As  early  as  1891,  in  an  article  entitled  "A  New  Consti- 
tutional Amendment",  it  was  said :  "In  a  commercial 
emergency,  the  oracles  of  the  law  have  been  approeched. 
.  .  .  They  now  give  forth  a  response,  which  startles 
lawyers  and  laymen.  .  .  .  For  the  first  time,  it  is  ap- 
preciated that  there  has  lain  dormant  for  a  century  a 
vigorous  principle  of  the  common  law,  an  element  of 

» Brewer,  J.,  in  Budd  v.  Nw>  York,  148  U.  S.  517. 

*  The  American  CommomoeaUh  (1888),  by  James  Bryce,  1, 267. 


S16  THE  SUPREME  COURT 

Anglo-Saxon  government,  which,  in  the  hands  of  an 
aristocracy,  has  often  been  an  instrument  of  wrong  and 
oppression,  and  which  may,  in  the  hands  of  the  people, 
eflFect  a  despoliation  of  property  owners,  surpassing  the 
encroachments  of  the  Crown  at  the  worst  periods  of 
English  history.  .  .  .  Years  ago,  the  Court  introduced 
the  Slavery  struggle  with  the  Dred  Scott  decision.  To- 
day, it  may  be  that  it  has  introduced  the  property 
struggle,  with  the  decision  of  Munn  v.  Illinois.  .  .  . 
The  principle  is  one  which  can  only  be  regarded  with 
anxiety  and  alarm  by  conservative  minds.  Speculation 
falters  in  guessing  at  the  uses  to  which  it  may  be  put  in 
experimental  legislation  by  those  who  beUeve  in  the 
theory  of  State  control.  ...  A  learned  ex-Judge  of 
one  of  the  Federal  Courts  remarked  on  reading  the 
opinions :  *  If  this  Government  is  to  endure,  the  views 
expressed  in  the  dissenting  opinion  of  Mr.  Justice 
Field  must  be  adopted  as  the  law  of  the  land.'  *'  ^  On 
the  other  hand,  it  was  said  that  though  the  Munn 
Case  seemed  to  ^'strike  a  telling  blow  at  individualism 
and  lends  a  strong  support  to  the  socialistic  ideas  of  the 
day",  yet  that  "the  doctrine  may  be  regarded  rather 
as  an  effort  of  individualism  to  stem  the  rising  tide  of 
combination,  rather  than  as  socialistic,  a  stand  made 
by  the  individual  rather  than  a  move  forward  of 
socialism."  * 

In  spite  of  all  apprehensions  and  of  Judge  Field's 
foreboding,  the  State  Legislatures  refrained  for  many 
years  from  unduly  extending  their  control  of  private 
business ;  and  the  Court  had  occasion  to  apply  the  doc- 

^A  New  CofuHtvHonal  Amendment,  by  Charies  C.  Marshall,  Amer.  Law  Ree. 
(1891),  XXIV,  stating  that  the  case  had  been  "conspicuous  for  a  torrent  of  adverse 
criticism."  Everett  V.  Abbot  in  Justice  and  the  Common  Law,  in  1918,  said :  "The 
Grongar  C(W«  are  still  to  be  justified.  .  .  .  Public  interest  and  public  right  are  two 
very  different  things." 

*  The  Doctrine  of  the  United  States  Supreme  Court  of  Property  Affected  by  a  PubUo 
Intereet,  and  ita  Tendeneiee,  by  W.  Fred  Fisher,  Yale  Law  Joum.  (1895),  V. 


WAITE  AND  FOURTEENTH  AMENDMENT    817 

trine  of  "business  clothed  with  a  public  interest'*,  to 
but  few  businesses,  other  than  those  involved  or  dis- 
cussed in  the  Granger  Cases .^  Nevertheless,  the  right 
of  control  still  remained  where  it  was  placed  by  the  Court 
in  1877 ;  and  the  existence  of  such  a  right  in  a  State 
Legislature  served  as  a  warning,  and  as  a  check  on  cor- 
porate pretensions.  Until  the  year  1914,  however,  it 
was  generally  regarded  by  law  writers  that  under  this 
decision,  any  business  in  which  there  was  a  virtual  mo- 
nopoly as  a  permanent  condition  inherent  in  the  nature  of 
things,  might  at  any  time  be  subjected  by  the  Legisla- 
ture  to  a  regulation  of  its  charges,  the  conditions  which 
might  produce  such  virtual  monopoly  being  various  — 
natural  limitations  such  as  available  sources  of  supply, 
restricted  opportunities  of  access,  necessity  of  conduct 
of  business  within  a  certain  location,  difficulties  in  dis- 
tribution, large  scale  of  the  business  and  absence  of 
effectual  substitutes.^  In  1914,  a  momentous  decision 
of  the  Court  in  a  case  involving  the  regulation  of  fire 
insurance  seemed  to  broaden  the  foundation  of  power 

^  For  later  diacmwions  of  the  principles  involved,  see  Bvdd  v.  New  York  (1802), 
143  U.  S.  517 :  Brass  v.  North  Dakota  (1894),  158  U.  S.  891 ;  Covington  etc.  Turnpike 
Road  Co.  V.  Sandford  (1896),  164  U.  S.  578;  Smuth  v.  Arnes  (1898),  169  U.  S.  466, 
Cotting  V.  Kansas  City  Stockyards  Co.  (1901),  183  U.  S.  79.  It  is  interesting  to  note 
that  Judges  Brewer  and  Field  dissenting  in  the  Bvdd  Case,  in  1892,  fifteen  years 
after  the  Munn  Case,  expressed  the  belief  that  the  Court  would  abandon  its  doc- 
trine. Twenty  years  have  elapsed  since  the  Budd  Case,  without  any  change  of  the 
Court's  doctrine.    See  also  Block  y.  Hirsh,  41  Sup.  Ct.  Rep.,  April  18,  1921. 

*  This  was  practically  the  explanation  of  the  Oranger  Case  given  a  year  later  by 
Judge  Bradley  in  the  Sinking  Fund  Cases,  99  U.  S.  700,  747,  in  1878,  "that  when 
an  employment  or  business  becomes  a  matter  of  such  public  interest  and  importance 
as  to  create  a  common  charge  or  burden  upon  the  citizen ;  in  other  words,  when  it 
becomes  a  practical  monopoly,  to  which  the  citizen  is  compelled  to  resort,  and  by 
means  of  which  a  tribute  can  be  exacted  from  the  community,  it  is  subject  to  regu- 
lation by  the  legislative  power."  See  also  Social  Reform  and  the  ConstituUon  (1911), 
by  Frank  J.  Goodman ;  Increased  Control  of  State  Adioities  by  Federal  Courts,  by 
Charles  A.  Moore,  Proc.  Amer.  Pol,  Science  Ass.  (1901) ;  The  Coal  Mines  and 
the  Public,  by  Heman  W.  Chaplin  (1902);  The  Coal  Mines  and  the  Law, 
by  Bruce  Wyman,  Green  Bag  (1902),  XIV;  A  Word  More  as  to  the  Coal  Mines, 
by  Heman  W.  Chaplin,  Oreen  Bag  (1902),  XIV ;  Control  of  the  Market,  by  Bruce 
Wyman  (1901);  Public  Service  Company  Rates  and  the  Fourteenth  Amendment, 
Hart.  Law  Rev.  (1901)»  XV ;  Popular  Law  Making  (1910)»  by  Frederic  J.  Stimaon. 


S18  THE  SUPREME  COURT 

of  State  regulation,  and  to  base  it  purely  on  the  "public 
interest"  requiring  such  a  regulation,  as  determined  by 
the  Legislature.^  But,  while  the  legislative  power  of 
regulation  was,  until  recent  years,  extended  to  few  addi- 
tional cases  of  private  business  "  clothed  with  a  public  in- 
terest'*, it  was  applied  to  a  large  number  of  varied  cor- 
porate interests  the  control  of  which  has  been  justified 
by  the  semi-public  nature  imparted  to  them  by  the  pos- 
session of  special  franchises;  and  the  extent  of  the 
authority  of  the  State  Legislatures  to  regulate  the 
charges  of  water,  gas,  electric  light,  telephone,  street 
railway,  bridge,  turnpike,  irrigation,  ore-carrier  and 
numbers  of  other  like  corporations  has  been  the  subject 
of  a  mass  of  litigation  and  decisions  by  the  Court.^ 

Having  thus,  as  early  as  1877,  limited  both  the  Priv- 
ilege and  Immunity  Clause  and  the  Due  Process  Clause 
of  the  Fourteenth  Amendment,  the  Court  under  Chief 
Justice  Waite  gave  also  a  restricted  meaning  to  the 
Denial  of  the  Equal  Protection  of  the  Laws  Clause. 
About  ten  decisions  were  rendered  involving  this  por- 
tion of  the  Amendment ;  but  in  only  one  case  was  the 
action  of  the  State  found  to  come  within  its  proscrip- 
tion.^ In  Missouri  v.  LevriSy  101  U.  S.  22,  the  Court 
stated  that  all  that  this  Clause  meant  was  ^^  that  no  per- 
son or  persons  shall  be  denied  the  same  protection  of  the 
laws  which  is  enjoyed  by  other  persons  or  other  classes 
in  the  same  place  under  like  circumstances."  In  1886,  a 
case  was  decided  in  which  the  country  expected  that  the 

^  Oerman  Alliance  Insurance  Co.  v.  Kansas,  288  U.  S.  889;  see  especially  Business 
Jurisprudence,  by  Edward  A.  Adler,  Harv.  Law  Rev.  (1914),  XXVIII ;  Labor,  Capir 
tal  and  Business  ai  Common  Law,  by  Edward  A.  Adler,  ibid.  (1916),  XXIX;  Notes 
on  the  Federal  Poioer  to  Regtdate  Commodity  Prices,  Cong.  Rec.,  June  16, 1917. 

*  See  Spring  Valley  Waterworks  y.  Sckottler,  110  U.  S.  847,  as  early  as  1884 ;  and 
see  Public  Service  Company  Rates  and  the  Fourteenth  Amendment,  by  Nathan 
Mathews,  Jr.,  and  William  G.  Thompson,  Harv.  Law  Rev.  (1901),  XV. 

s  In  Yick  Wo  V.  Hopkins  (1886),  118  U.  S.  856 ;  see  also  Missouri  v.  Lewis  (1880), 
101  U.  S.  22;  Fire  Ass.  etc.  v.  New  York  (1886),  119  U.  S.  110;  Hayes  v.  Missouri 
(1887),  120  U.  S.  68;  Dowy.  Biedetman  (1888),  125  U.  S.  680;  Pembina  Mining  Co. 
V.  Pennsykfania  (1888),  125  U.  S.  181. 


WAITE  AND  FOURTEENTH  AMENDMENT    819 

Court  would  finally  settle  a  great  question  long  agitated 
in  the  community :  how  far,  under  the  Amendment,  a 
State  might  impose  upon  corporations  a  different  system 
of  taxation  from  that  imposed  upon  individuals.  The 
question  had  been  argued  with  supreme  ability  by 
George  F.  Edmunds,  William  M.  Evarts  and  Roscoe 
Conkling  in  1882  and  1886,  in  two  cases  involving  Cali- 
fornia taxes  on  the  Southern  Pacific  Railroads.  The  de- 
cision of  the  Federal  Circuit  Courts  had  been  in  favor  of 
the  corporation  tax  involved.  "If  confirmed  by  the 
Supreme  Court,  it  will  add  greatly  to  the  protective 
usefulness  of  the  Fourteenth  Amendment,"  said  the 
Independent.  "It  will  impose  a  restriction  upon  the 
taxing  power  of  the  States,  adapted  to  guard  against 
abuses  of  the  power,  and  promote  the  general  interests 
of  justice  among  the  people."  *  The  question  was  not 
decided  at  this  time,  in  1886,  since  the  case  was  disposed 
of  on  another  point ;  but  Judge  Field  in  a  concurring 
opinion  stated  his  regret  that  the  Court  had  not  passed 
on  the  question  whether,  in  the  tax  assessment  in- 
volved, "an  unjust  discrimination  had  been  made  be- 
tween the  corporation's  property  and  the  property  of 
individuals,  to  its  disadvantage,  thus  subjecting  it  to  an 
unequal  share  of  the  public  burdens,  and  to  that  extent 
depriving  it  of  the  equal  protection  of  the  laws."  "At 
the  present  day,"  he  said,  "nearly  all  great  enterprises 
are  conducted  by  corporations,  and  a  vast  portion  of  the 
wealth  of  the  country  is  in  their  hands.  It  is,  therefore, 
of  the  greatest  interest  to  them,  whether  their  property  is 
subject  to  the  same  rules  of  assessment  and  taxation  as 
the  property  of  natural  persons.  .  .  .    The  question 

1  County  of  San  Mateo  v.  Southern  Faeific  R,  R.  (1885),  116  U.  S.  188;  Santa  Clara 
County  V.  Southern  Pacific  R.  R.  (1886),  118  U.  S.  S94 ;  Independent,  Nov.  80, 1882 ; 
New  York  Tribune,  Dec.  19, 1882 ;  New  York  World,  Jan.  28, 1888,  giving  high  praise 
to  ConkUng's  argument,  and  speaking  of  the  "novel  aggression  of  sandhill  radical- 
ism upon  corporation  and  capital,  as  embedded  in  the  Constitution  of  California." 


S20  THE  SUPREME  COURT 

is  of  transcendent  importance,  and  it  will  continue  to 
come  here,  until  it  is  authoritatively  decided,  in  har- 
mony with  the  great  Constitutional  Amendment,  which 
insures  every  person,  whatever  his  position  or  associa- 
tion, the  equal  protection  of  the  law ;  and  that  neces- 
sarily implies  freedom  from  the  imposition  of  unequal 
burdens  under  the  same  conditions."  In  later  years, 
the  Court  finally  disposed  of  the  question  by  confirming 
fully  the  power  of  the  State  to  discriminate  between 
corporations  and  individuals  in  methods  of  taxation.' 

It  is  interesting  to  note  that  throughout  the  period  of 
Chief  Justice  Waiters  term  of  office,  the  Court  evinced 
considerable  apprehension  at  the  number  of  cases  which 
were  being  presented  to  it  under  the  Fourteenth  Amend- 
ment. As  early  as  1878,  at  a  time  when  less  than 
twenty  cases  had  involved  the  Amendment,  the  Court 
gave  the  following  warning,  through  Judge  Miller,  in 
Davidson  v.  New  Orleans,  96  U.  S.  97 :  "It  is  not  a  little 
remarkable,  that  while  this  provision  has  been  in  the 
Constitution  of  the  United  States,  as  a  restraint  upon 
the  authority  of  the  Federal  Government,  for  nearly  a 
century,  and  while,  during  all  that  time,  the  manner  in 
which  the  powers  of  that  Government  have  been  exer- 
cised has  been  watched  with  jealousy,  and  subjected 
to  the  most  rigid  criticism  in  all  its  branches,  this  special 
limitation  upon  its  powers  has  rarely  been  invoked  in 
the  judicial  forum  or  the  more  enlarged  theater  of  public 
discussion.  But  while  it  has  been  a  part  of  the  Con- 
stitution, as  a  restraint  upon  the  power  of  the  States, 
only  a  very  few  years,  the  docket  of  this  Court  is  crowded 
with  cases  in  which  we  are  asked  to  hold  that  State 

^  It  is  interesting  to  note  that  it  was  not  until  the  year  1885  in  this  case  of  County 
qfSan  Mateo  v.  Southern  Pacific  R,  R.,  116  U.  S.  138,  that  the  Court  for  the  first  time 
expressly  recognized  a  corporation  to  be  a  "person  "  within  the  meaning  of  the  Four- 
teenth Amendment;  and  a  distinct  decbion  to  that  effect  was  made  in  1888  in 
Pembina  etc.  Mining  Co,  v.  Penmylvania,  125  U.  S.  181. 


WAITE  AND  FOURTEENTH  AMENDMENT    321 

Courts  and  State  Legislatures  have  deprived  their  own 
citizens  of  life,  liberty  or  property  without  due  process 
of  law.  There  is  here  abundant  evidence  that  there 
exists  some  strange  misconception  of  the  scope  of  this 
provision  as  found  in  the  Fourteenth  Amendment.  In 
fact,  it  would  seem,  from  the  character  of  many  of  the 
cases  before  us,  and  the  arguments  made  in  them,  that 
the  clause  under  consideration  is  looked  upon  as  a  means 
of  bringing  to  the  test  of  the  decision  of  this  Court  the 
abstract  opinions  of  every  unsuccessful  litigant  in  a 
State  Court  of  the  justice  of  the  decision  against  him, 
and  of  the  merits  of  the  legislation  on  which  such  a  deci- 
sion may  be  founded."  And  in  1885,  in  Missouri  Pacific 
Railway  Co.  v.  Humes,  115  U.  S.  512,  the  Court,  through 
Judge  Field,  expressed  "its  increased  surprise  at  the 
continued  misconception  of  the  purpose  of  the  provi- 
sion"; and  it  again  asserted  that  the  "hardship,  im- 
policy, or  injustice  of  State  laws  is  not  necessarily  an 
objection  to  their  constitutional  validity",  and  that 
"this  Court  is  not  a  harbor  where  refuge  can  be  found 
from  every  act  of  ill-advised  and  oppressive  State  legis- 
lation." So  long  as  the  State's  action  is  not  purely 
arbitrary,  and  the  enforcement  of  the  law  is  "attended 
with  the  observance  of  those  general  rules  which  our  sys- 
tem of  jurisprudence  prescribes  for  the  security  of  pri- 
vate rights,  the  harshness,  injustice  or  oppressive  char- 
acter of  the  law  will  not  invalidate  them  as  affecting  life, 
liberty  or  process  without  due  process  of  law." 

These  expressions  of  alarm,  while  scarcely  required 
by  the  actual  number  of  cases  then  presented,  were 
later  to  be  justified.  For  while  less  than  seventy  cases 
were  decided  under  that  Amendment  in  the  sixteen  years 
between  1873  and  1888  inclusive,  about  seven  hundred 
and  twenty-five  were  so  decided  in  the  thirty  years  from 
1888  to  1918. 

VOL.  m  — 11 


CHAPTER  THIRTY-FOUR 

THE  CIVIL  RIGHTS  ACTS 

1875-1884 

While  the  scope  of  the  Fourteenth  Amendment  and 
the  degree  of  its  application  to  the  financial,  economic 
and  social  legislation  of  the  period  were  thus  being  grad- 
ually developed  by  Chief  Justice  Waite  and  his  Asso- 
ciates, the  greatest  growth  of  this  branch  of  the  law  did 
not  begin  until  after  Waiters  death  in  1888.  The  mean- 
ing and  effect  of  that  Amendment,  however,  so  far  as 
it  concerned  the  negro  race  for  whose  protection  it  had 
been  primarily  adopted,  were  fully  and  definitely  settled 
by  Waite  and  his  Court,  in  a  series  of  eight  cases  between 
1876  and  1884.^ 

The  conservative  and  restricted  interpretation  which 
the  Court,  under  Chief  Justice  Chase,  had  placed  on 
the  Privilege  and  Immunity  Clause  of  the  Amendment 
had  given  a  warning  to  the  extreme  Reconstructionists 

^  It  may  be  noted  that  the  Thirteenth  Amendment  was  proclaimed  to  be  in  force, 
Dec.  18,  1805 ;  the  Fourteenth,  July  28,  1868 ;  the  Fifteenth,  March  80,  1870. 
The  statutes  passed  in  enforcement  of  the  Amendments  were  as  follows:  the 
Civil  Rights  or  Enforcement  Act  of  April  9, 1866 ;  the  Civil  Rights  or  Enforcement 
Act  of  May  81,  1870,  Act  of  Feb.  28,  1871 ;  the  Ku  Klux  Act  of  April  20,  1871 ; 
the  Civil  Rights  Act  of  March  1,  1875.  See  Documentary  History  cf  Reconitruo- 
turn  (1906),  by  Walter  L.  Fleming;  The  Federal  Enforcement  Acts,  by  William  W. 
Davis,  Studiee  in  Southern  History  and  Politics  (1914) ;  Essays  on  the  Civil  War  and 
Reconstruction  (1904),  by  William  A.  Dunning;  Reconstruction,  FoUHoal  and  Eco- 
nomic (1907),  by  William  A.  Dunning. 

In  April,  1872,  the  Civil  Rights  Enforcement  Act  of  April  9,  1866  (passed  prior 
to  the  Fourteenth  Amendment)  was  considered  in  Blyew  v.  United  States,  IS 
Wall.  581,  but  its  constitutionality  was  not  passed  upon.  This  Act  had  been  held 
constitutional  in  cases  in  the  Federal  Circuits  Courts  by  Judge  Swayne,  in  Ken- 
tucky in  1866,  and  by  Chief  Justice  Chase,  in  Maryland  in  1867,  and  Horace  White 
said  in  his  L^e  of  Lyman  TrumbuU  (1913),  274-275,  that :  "If  either  of  these  cases 
had  been  taken  to  the  Supreme  Court  on  appeal  at  that  time,  the  Civil  Rights  Act 
of  1866  would  doubtless  have  been  upheld  by  that  body." 


THE  CIVIL  RIGHTS  ACTS  82S 

that  their  hopes  as  to  the  validity  of  National  Legis- 
lative protection  to  the  negro  might  be  dashed.  When 
the  additional  Civil  Rights  Act  of  1875,  which  directly- 
penalized  discrimination  against  the  negro  in  public 
conveyances,  hotels  and  elsewhere,  was  under  debate 
in  Congress,  it  was  pointed  out  in  the  press  that  its 
validity  was  highly  doubtful.  "There  can  be  little 
doubt,"  said  the  Nation^  "that  if  it  were  not  for  the 
fatal  habit  we  have  fallen  into  since  the  war  of  regard- 
ing the  Central  Government  practically  above  the  law 
and  the  Constitution,  whenever  the  negro  is  concerned, 
the  mere  suggestion  of  the  constitutional  points  ought 
to  have  killed  the  bill  forever.  It  is  plainly  unconsti- 
tutional. .  .  .  The  Fourteenth  Amendment  has  twice 
come  before  the  Supreme  Court;  and  on  neither  of 
these  well-known  occasions  was  the  decision  of  the 
Court  of  such  a  character  as  to  lend  much  encourage- 
ment to  those  who  believe  the  new  Amendments  to  have 
introduced  very  revolutionary  principles  as  to  the  re- 
lations of  the  States  to  the  General  Government.  .  .  . 
In  the  light  of  these  decisions,  it  may  safely  be  inferred 
that  the  Supreme  Court  must  look  with  extreme  sus- 
picion upon  a  law,  upsetting  the  domestic  law  of  States 
on  the  subject  of  schools,  of  common  carriers,  of  inn- 
keepers, and  substituting  for  them  the  new  and  strange 
system  invented  by  the  authors  of  this  bill.  In  the 
interest  of  the  negro,  we  trust  that  it  may  never  reach 
the  Court.  Deeply  as  we  sympathize  with  his  wrongs, 
we  have  no  expectation  or  hope  of  seeing  them  righted, 
by  hounding  on  his  old  masters  to  acts  of  violence  and 
lawlessness,  by  the  passage  of  equally  violent  and  law- 
less Acts  of  Congress.  The  Reconstruction  period  is 
ended,  and  the  negro  in  future  will  occupy  such  a  posi- 
tion as  his  industry  and  sobriety  entitle  him  to.  Such 
bills  as  the  one  we  have  been  considering  do  nothing 


824  THE  SUPREME  COURT 

for  him  but  turn  his  friends  into  enemies."  *  The 
probable  action  of  the  Court  was  thus  correctly  prophe- 
sied ;  for  within  a  year  after  this  Civil  Rights  Act  of 
1875  passed,  two  decisions  were  rendered  which  entirely 
demolished  the  Radical  Reconstructionist  plan  of  pro- 
tecting the  rights  of  the  negro  by  direct  Federal  legis- 
lation. On  March  27, 1876,  the  Court,  in  United  States 
V.  Reese^  92  U.  S.  214,  held  unconstitutional  sections 
three  and  four  of  the  earlier  Civil  Rights  Enforcement 
Act  of  May  31,  1870,  which  penalized  inspectors  in 
State  elections  for  refusing  to  receive  and  count  votes 
and  for  obstructing  any  citizen  from  voting.  In  an 
opinion  rendered  by  Chief  Justice  Waite,  the  Court 
held  that  under  the  Fifteenth  Amendment,  Congress 
had  only  power  to  enforce  "by  appropriate  legislation" 
the  right  to  exemption  from  discrimination  in  the  ex- 
ercise of  the  elective  franchise  on  account  of  race,  color 
or  previous  condition  of  servitude;  that  the  statute 
in  question  was  not  confined  to  such  a  limited  class  of 
discrimination,  but  extended  broadly  to  all  discrimina- 
tions and  obstructions ;  that,  so  construed,  it  was  an 
unconstitutional  interference  with  the  rights  of  the 
States.  To  the  old  argument  against  the  Court's 
power  to  overthrow  an  Act  of  Congress,  the  Chief  Jus- 
tice repUed  that,  while  Congress  was  supreme  within 
its  legislative  sphere,  the  Courts,  "when  called  upon 
in  due  course  of  legal  proceedings,  must  annul  its  en- 
croachments upon  the  reserved  powers  of  the  States 
and  the  people."  The  decision  in  this  case  had  been 
long  looked  for  with  much  anxiety  by  those  opposed 
to  Federal  interference  in  State  elections ;  and  the  care 
with  which  the  Court  considered  the  case  was  shown  by 

1  Nation,  Sept.  17, 1874;  see  also  TA^  ConMuHonality  qf  the  CivU  BighU  Law,  by 
William  Archer  Cooke,  Southern  Law  Rev,  (July,  1875),  N.s.,  1, 193 :  "There  may 
be  a  partisan  feeling  moving  the  spirit  of  the  law ;  in  a  legal  sense,  we  have  nothing 
to  fear  from  it  if  the  same  feeling  does  not  invade  the  Bench/' 


THE  CIVIL  RIGHTS  ACTS  825 

the  fact  that  while  it  was  argued,  January  13,  1875, 
by  Attorney-General  Williams  and  Solicitor-General 
S.  F.  Phillips  against  the  veteran  Henry  Stanbery  and 
B.  F.  Buckner,  the  Court  reserved  its  decision  for 
fifteen  months.  Concomitant  with  this  case,  the  Court 
rendered  another  decision  which  came  as  a  heavy 
blow  to  those  who  were  seeking  to  protect  the 
negro  voter.  In  United  States  v.  Cruikshank,  92 
U.  S.  542,  indictments  had  been  found  for  conspi- 
racy under  section  six  of  the  statute,  which  forbade 
any  person  "to  injure,  oppress,  threaten  or  intimi- 
date any  citizen,  with  intent  to  prevent  or  hinder  his 
free  exercise  and  enjoyment  of  any  right  or  privilege 
granted  or  secured  to  him  by  the  Constitution  or  laws 
of  the  United  States/'  Frauds  and  violence  against 
the  negroes  in  Louisiana  State  elections  were  involved 
in  this  case;  and  the  defendants  were  charged  with 
conspiring  to  prevent  citizens  in  the  enjoyment  of  their 
right  to  peaceably  assemble  with  others,  of  their  right 
to  petition  for  redress  of  grievances,  of  their  right  to 
bear  arms  and  of  their  right  to  vote ;  also  with  con- 
spiring to  falsely  imprison  and  murder  and  thus  de- 
prive citizens  of  their  livejs  and  liberty  without  due 
process  of  law.  Arguments  had  been  heard  in  March, 
1875,  the  Attorney-General  and  the  Solicitor-General 
appearing  for  the  Government,  and  David  Dudley 
Field,  Reverdy  Johnson,  Philip  Phillips,  John  A.  Camp- 
bell and  R.  H.  Marr  for  the  defendants.  The  decision, 
handed  down,  over  a  year  later,  was  a  notable  victory 
for  the  defendants'  eminent  counsel.  The  Court  held 
that  the  various  rights  so  set  up  were  not  rights  which 
citizens  enjoyed  by  virtue  of,  or  which  were  secured  to 
them  by,  the  Constitution  of  the  United  States ;  and 
hence,  the  actions  set  forth  in  the  indictment  did  not 
come  within  the  purview  of  the  statute.     "The  right 


S26  THE  SUPREME  COURT 

of  the  people  peaceably  to  assemble  for  lawful  pur- 
poses existed  long  before  the  adoption  of  the  Consti- 
tution •  .  .  and  always  has  been  one  of  the  attributes 
ol  citizenship  imder  a  free  government/'  the  Court 
said.  "'It  was  not,  therefore,  a  right  granted  to  the 
people  by  the  Constitution/'    This  same  was  held 
true  as  to  the  right  to  bear  arms.     With  respect  to  the 
right  to  due  process,  while  the  Fourteenth  Amend- 
ment prohibits  a  State  from  denying  due  process,  the 
Amendment  does  not  add  anything  to  the  right  which 
a  citizen  already  possessed.     '^It  simply  furnishes  an 
additional  guaranty  as  against  any  encroachment  by 
the  States  upon  the  fimdamental  rights  which  belong 
to  every  citizen  as  a  member  of  society.  .  .  .     The 
power  of  the  National  Government  is  limited  to  the 
enforcement  of  this  guaranty."    The  right  to  vote 
was  held  to  come  from  the  States  only,  and  it  was  only 
right  of  exemption  from   discrimination   on   account 
of   race   or   color   under   the  Fifteenth  Amendment, 
which  came  from  the  United  States.     Inasmuch  as 
the  indictments  did  not  allege  such  discrimination, 
they  could  not  be  upheld.     "We  may  suspect,"  said 
the  Court,  "that  race  was  the  cause  of  the  hostility, 
but  it  is  not  so  averred." 

The  practical  effect  of  these  decisions  was  to  leave 
the  Federal  statutes  almost  wholly  ineffective  to  pro- 
tect the  negro,  in  view  of  the  construction  of  the  Amend- 
ments adopted  by  the  Court,  the  lack  of  adequate 
legislation  in  the  Southern  States,  and  the  extremely 
limited  number  of  rights  which  the  Court  deemed  in- 
herent in  a  citizen  of  the  United  States,  as  such^  imder 
the  Constitution.  The  decisions,  nevertheless,  were 
believed  by  all,  except  the  Radical  opponents  of  the 
South,  to  be  wise  and  to  open  the  door  for  more  sane 
and  liberal  methods  of  dealing  with  the  negro  problem 


THE  CIVIL  RIGHTS  ACTS  S27 

in  the  South.  "'  The  fatal  defect  in  the  legislation 
consists  in  an  assumption,  which,  if  it  were  true,  would 
revolutionize  our  whole  system  of  government,  and 
as  remarked  by  the  Supreme  Court,  clothe  Congress 
at  its  discretion  with  jurisdiction  in  respect  to  the 
entire  domain  of  civil  rights  heretofore  belonging  ex- 
clusively to  the  States,*'  said  the  Independent.  "To 
assume  State  powers  as  the  method  of  punishing  and 
preventing  wrong  in  the  States  would  be  an  experi- 
ment with  our  poUtical  system  that  had  better  be 
omitted.  The  ostensible  end  will  not  justify  it.  South- 
em  questions,  so  far  as  they  are  purely  State  ques- 
tions, must  be  left  to  the  States  themselves,  and  to  those 
moral  influences  which  finally  shape  the  course  of  legis- 
lation. The  General  Government  cannot  authorita- 
tively deal  with  them,  without  producing  more  evils 
than  it  will  remedy.'*  ^  It  further  pointed  out  that, 
as  the  Court  did  not  concur  with  the  imderlying  theory 
on  which  the  statutes  were  based,  namely,  that  the 
Amendments  gave  to  Congress  the  power  to  enact 
ordinary  police  legislation  penalizing  trespasses  and 
crimes  committed  by  individuals  in  the  States,  the  de- 
cision should  serve  as  a  warning  to  Congress  to  keep 
within  the  scope  of  its  constitutional  powers.  Simi- 
larly, the  New  York  Times  said  that  the  source  of  a 
good  many  blunders  made  in  the  legislation  was  ''the 
tendency  to  confound  the  right  which  one  citizen  must 
respect  in  another  with  the  rights  whose  enjoyment  the 
State  must  guarantee  to  all  its  citizens.  The  United 
States  have  neither  the  power  nor  the  obligation  to  do 
police  duty  in  the  States,  a  fact  which  both  Judges  and 
Legislators  have  committed  serious  mistakes  in  ignor- 

^ Independent,  April  6, 18, 1876;  New  York  Times,  March  8, 29, 1876;  New  York 
Tribune,  March  29,  1876;  New  York  Herald,  March  28,  1876.  Chicago  Tribune, 
March  22,  29,  1876;  New  York  World,  March  28,  1876;  Harper*  e  WeMy,  March 
20, 1875,  at  the  tune  of  the  argumeiit. 


828  THE  SUPREME  COURT 

ing/'  That  the  decision  marked  the  commencement 
of  a  new  era  in  the  exercise  of  legislative  power,  and 
formed,  like  the  SUmghterlumse  Case  decision,  a  curb 
on  the  breadth  of  power  theretofore  asserted  by  Con- 
gress was  ably  pointed  out  by  the  New  York  Tribune. 
^'During  and  since  the  war,  Congress  has  often  acted 
as  if  it  were  supreme,  not  merely  within  but  outside 
of  its  constitutional  limitations.  For  some  error  in 
this  direction,  there  was  much  excuse.  A  powerful 
party  persistently  tried  to  make  the  Constitution  of  the 
United  States  the  left  wing  of  Lee*s  army.  The  same 
party  had  so  construed  the  Constitution  as  to  make 
it  the  bulwark  of  slavery.*'  Under  such  conditions, 
public  opinion  rejected  the  theory  that  in  time  of  war 
the  Nation  did  not  have  full  power  to  defend  itself » 
and  supported  Congress  in  its  asserted  power  to  adopt 
any  measure  which  it  deemed  necessary  to  public  wel- 
fare. But,  after  the  war,  said  the  Tribune^  "greedy 
and  malignant  partisanship  began  to  demand,  as  neces- 
sary to  the  public  welfare,  measures  which  were  only 
needful  for  the  maintenance  of  unworthy  or  corrupt 
men  in  power.  Of  these  measures,  the  Enforcement 
Act  was  one  of  the  most  odious.  Under  it,  shameful 
abuses  have  been  perpetrated ;  "  and  it  concluded  im- 
pressively: "It  will  now  lie  dead  upon  the  statute 
book,  to  remind  future  generations  of  Americans  that 
no  conceivable  abuse  of  the  Constitution  by  one  party 
can  justify  disregard  of  the  Constitution  by  the  other."  ^ 
The  more  partisan  Republican  papers,  like  the 
Chicago  Tribune^  regarded  the  decisions  with  mixed 
views.  After  saying  that  "for  clearness  of  thought 
and  trimness  of  expression'*  the  opinions  would  "com- 
mend the  new  Chief  Justice  to  the  confidence  of  his 
countrymen",  it  stated  that  it  was  "fortunate,  in  so 

1  See  also  Springfield  lUpubliean,  March  28»  29, 1876. 


THE  CIVIL  RIGHTS  ACTS  829 

far  as  it  restrains  Congress  from  enacting  penal  legis- 
lation in  elections  beyond  the  power  conferred  upon  it 
by  the  Constitution,  the  infraction  of  which  would  be 
seriously  dangerous,  no  matter  what  party  were  in  power. 
But  it  is  unfortunate,  in  so  far  as  it  may,  for  a  time, 
open  up  the  opportunity  for  serious  abuses,  and  perhaps 
terrorism  in  the  South.  .  .  .  The  present  law,  being 
practically  inoperative,  will  exercise  no  restraint  upon 
those  who  desire  to  interfere  with  the  votes  of  the 
colored  people  at  the  South.  The  necessity  for  fur- 
ther and  proper  legislation,  to  carry  into  effect  the 
provisions  of  the  Fifteenth  Amendment,  will  be  another 
reason,  however,  for  renewed  effort  on  the  part  of  the 
Republican  Party  to  regain  control  of  Congress."  The 
Democratic  papers  of  course  applauded  the  decision. 
''It  may  be  described  as  the  final  and  authoritative 
enunciation  of  the  doctrine  of  the  duaUty  of  the  Ameri- 
can system  of  Government  and  the  dual  nature  of 
American  citizenship,"  said  the  New  York  World. 

The  Radical  Reconstructionists  and  their  press  saw, 
with  anger  and  dismay,  their  whole  scheme  of  legis- 
lation overthrown;  and,  as  one  party  organ  said, 
under  the  Court's  construction,  the  statute  was  "only 
a  pretense,  keeping  a  promise  to  the  colored  man's  ear 
and  breaking  it  to  his  hope",  and  "if  the  Amendments, 
intended  to  secure  all  citizens  of  the  United  States 
from  legal  discriminations  on  accoimt  of  color,  fail  to 
express  their  intention,  the  blunder  is  unprecedented." 

But  both  supporters  and  opponents  agreed  in 
the  view  that  the  opinions  rendered  in  the  cases  pro- 
claimed the  new  Chief  Justice  a  great  lawyer.  "  Chief 
Justice  Waite,  in  this  decision  and  in  the  terms  of  its 
utterance,  has  vindicated  his  disposition  and  capacity 
to  emulate  the  fame  of  Jay,  Marshall  and  Taney," 
said  the  New  York  World;  and  the  New  York  Times 


8S0  THE  SUPREME  COURT 

said :  *^  So  fax  as  they  may  be  regarded  as  reflecting  his 
influence  upon  the  Court,  they  afford  abundant  evi- 
dence that  his  appointment  was  a  judicious  one,  adding 
strength  and  dignity  to  that  great  tribunal.  •  .  .  The 
decisions  deal  with  constitutional  questions  of  the  highest 
order,  and  deal  with  them  in  a  way  to  render  still  more 
firm  the  confidence  of  the  people  in  the  impartiality  and 
wisdom  of  the  Court,  and  to  enhance  the  value  of  that 
department  of  the  Government  as  a  means  of  securing 
the  rights  of  citizens.  It  is  the  highest  function  of  the 
Supreme  Court  to  interpret  the  National  Constitution." 
Viewed  in  historical  perspective  now,  however,  there 
can  be  no  question  that  the  decisions  in  these  cases 
were  most  fortunate.  They  largely  eliminated  from 
National  politics  the  negro  question  which  had  so  long 
embittered  Congressional  debates ;  they  relegated  the 
biu*den  and  the  duty  of  protecting  the  negro  to  the 
States,  to  whom  they  properly  belonged;  and  they 
served  to  restore  confidence  in  the  National  Court  in 
the  Southern  States.  As  an  eminent  Southern  lawyer 
has  said:  ''When  the  decision  was  reached  and  the 
prisoners  were  released,  the  utmost  joy  succeeded  [in 
Louisiana],  and  with  it  a  return  of  confidence  which 
gave  best  hopes  for  the  future.  .  .  .  What  gave  satis- 
faction to  the  South  and  strength  to  bear  the  afflic- 
tion in  which  they  found  themselves  was  the  deter- 
mination of  the  Court  to  maintain  the  true  charac- 
ter of  the  Government,  and  to  hold,  notwithstanding 
the  excited  feeling  growing  out  of  the  war,  that  the 
existence  of  the  States,  with  powers  for  domestic  and 
local  government  including  regulation  of  civil  rights, 
the  rights  of  persons  and  property,  was  essential  to  the 
perfect  working  of  our  complex  form  of  government."  ^ 

^  Fifty  Years*  Experience  in  Practice  at  the  Bar,  address  of  Carleton  Hiint»  LL.  B., 
at  a  meeting  of  the  Louuiana  Bar  Association,  June  6, 1908. 


THE  CIVIL  RIGHTS  ACTS  S81 

A  year  after  these  decisions.  President  Hayes  par- 
tially adopted  the  policy  of  leaving  the  South  to  work 
out  its  problems  free  from  National  interference,  by 
withdrawing  the  regular  army  from  Louisiana  and 
South  Carolina  in  April,  1877.  An  attempt  by  the 
Democratic  Congress  to  repeal  the  Civil  Rights  En- 
forcement Acts  was  vetoed  in  1877  by  the  President; 
but  the  Democratic  success  in  the  election  of  1878 
brought  about  a  two  years'  fight  for  such  repeal, 
and  a  bill  was  actually  passed,  as  a  rider  to  an  Appro- 
priation Act,  forbidding  the  United  States  marshals 
to  use  military  forces  in  the  execution  of  election  laws. 
It  was  not  until  1894,  under  President  Cleveland,  that 
the  chief  obnoxious  provisions  of  the  Enforcement  Acts 
were  finally  abolished. 

Meanwhile,  the  extent  to  which  the  Fourteenth 
Amendment  could  be  invoked  for  the  protection  of  the 
negro  was  being  further  explained  by  other  decisions 
of  the  Court.  In  1880,  in  Strander  v.  West  Virginia^ 
100  U.  S.  808,  the  Court  reiterated  that  the  chief  de- 
sign of  the  Amendment  ^'was  to  protect  an  emanci- 
pated race  and  to  strike  down  all  possible  legal  dis- 
criminations"  ;  and  it  held  that  a  State  statute  which 
confined  jury  duty  to  white  persons  violated  the  Amend- 
ment, by  failing  to  secure  to  negroes  the  equal  protec- 
tion of  the  laws  guaranteed  to  them  by  the  National 
law  and  Constitution.  The  validity  of  the  section  of 
the  Civil  Rights  Act,  which  authorized  removal  into 
the  United  States  Courts  when  the  equal  rights  of  a 
citizen  were  denied  in  the  State  Courts,  was  upheld  by 
the  Court  on  the  ground  that,  as  the  Amendment  pro- 
vided that  Congress  might  enforce  it  by  appropriate 
legislation,  removal  of  cases  into  United  States  Courts 
had  been  *^  an  acknowledged  mode  of  protecting  rights, 


8S2  THE  SUPREME  COURT 

ever  since  the  foundation  of  the  government.**  ^  That 
Congress  still  possessed  some  power  of  protecting  the 
negro  against  discrimination  was  shown  in  Ex  parte 
Virginia^  100  U.  S.  339,  in  1880,  a  case  which  involved 
the  actions  of  one  Coles,  a  Coimty  Court  Judge 
of  Virginia  held  in  custody  on  a  Federal  indictment 
charging  him  with  excluding  negroes  from  jury  service. 
The  Court  held  that  he  was  not  entitled  to  release  on 
a  ])etition  for  habeas  corpus  to  the  Judge  of  the  United 
States  District  Court.  "A  State  acts  by  its  legisla- 
tive, its  executive  or  its  judicial  authorities,"  said  the 
Court.  "It  can  act  in  no  other  way.  The  Consti- 
tutional provision,  therefore,  must  mean  that  no  agency 
of  the  State,  or  of  the  officers  or  agents  by  whom  its 
powers  are  exerted,  shall  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  law.**  Since 
the  Amendment  was  enacted  to  secure  equal  rights,  and 
since  Congress  was  given  power  to  enforce  its  pro- 
visions against  the  State,  "such  legislation  must  act 
upon  persons,  not  upon  the  abstract  thing  denomi- 
nated a  State,  but  upon  the  persons  who  are  the  agents 
of  the  State  in  the  denial  of  the  rights  which  were  in- 
tended to  be  secured.**  Strong  dissents  were  filed  by 
Judges  Field  and  Clifford,  who  denied  that  Congress 
had  the  power  "to  exercise  coercive  authority  over 
judicial  officers  of  the  States  in  the  discharge  of  their 
duties  under  the  State  laws.**  They  claimed  that  such 
power  would  reduce  the  States  "to  a  humiliating 
and  degrading  dependence  upon  the  Central  Govern- 
ment ;  engender  constant  irritations,  and  destroy  that 
domestic  tranquillity  which  it  was  one  of  the  ob- 
jects of  the  Constitution  to  ensure.  .  .  .  Those  who 
regard  the  independence  of  the  States  in  all  their  re- 

^  See  the  Nation,  March  4, 1880 ;  see  alao  Virginia  ▼.  Atoe* ,  100  U.  S.  818,  linuU 
ing  the  operation  of  the  Removals  Act  to  action  of  a  State  official  occurring  prior 
to  trial;  Bush  v.  Kentucky,  107  U.  S.  110. 


THE  CIVIL  RIGHTS  ACTS  883 

served  powers  .  .  .  cannot  fail  to  view  with  the  grav- 
est apprehension  for  the  future"  an  indictment  of  a 
State  Judge  in  a  Federal  Court.^  If  this  decision,  said 
the  Nation^  "  is  to  be  carried  to  its  logical  results,  (it) 
implies  a  long,  and  we  may  add,  an  unexpected  stride 
in  the  direction  of  centralization." 

In  Need  v.  Delaware,  108  U-  S.  870,  the  Court  held 
that  the  Fifteenth  Amendment  ipso  fado  rendered  in- 
operative the  provisions  of  the  Constitution  and  laws 
of  Delaware,  in  force  at  the  time  of  its  adoption,  re- 
stricting jurors  to  white  persons  qualified  to  vote ;  and 
that  the  absence  of  any  statute,  in  conflict  with  the 
Fifteenth  Amendment  since  its  adoption,  constituted  a 
presumption  '"that  the  State  recognizes  as  its  plain 
duty"  the  binding  force  of  the  Amendment.  The 
Court  found,  therefore,  that  there  was  no  denial  of 
equality  by  the  State,  and  hence  no  right  of  the  de- 
fendant to  remove  his  case  into  a  United  States  Court. 
But  on  the  facts  presented,  showing  an  actual  dis- 
crimination against  negroes  in  the  drawing  of  the  jury 
by  State  oflScers,  it  held  that  "the  refusal  of  the  State 
Court  to  redress  the  wrong  by  them  committed  was  a 
denial  of  a  right  secured  to  the  prisoner  by  the  Consti- 
tution and  laws  of  the  United  States,"  and  it  reversed 
the  judgment  of  the  State  Court. 

^  The  final  outcome  of  thia  case  was  interestingly  commented  on  by  the  Nation. 
March  25,  1880:  "One  of  the  Virginia  Judges,  Judge  Hill,  whose  indictment  for 
not  summoning  negroes  on  juries  has  been  sustained  by  the  late  decision  of  the 
United  States  Supreme  Court  has  been,  at  Lynchburg,  tried  before  Judge  Rives 
and  a  jury  composed  of  ten  white  and  two  colored  men,  and  acquitted  without  ar- 
gument, the  evidence  against  him  having  completely  broken  down.  We  presume 
that  what  brought  him  into  trouble  was  the  difficulty  which  exists  in  many  parts  of 
the  South  of  finding  negroes  mentally  and  morally  qualified  to  sit  on  juries.  Those 
who  think  the  chief  end  of  Courts  of  law  is  the  disusing  of  justice  between  liti- 
gants and  between  the  State  and  criminals,  and  not  the  exemplification  of  social 
and  political  equality  will  feel  that  a  certain  amount  of  discretion  in  making  up 
juries  must  be  lodged  somewhere,  and  that  if  those  who  are  engaged  in  the  duty  and 
give  the  necessary  guarantees  as  to  character,  are  to  be  pursued  criminally  whenever 
their  use  of  discretion  does  not  satisfy  local  politicians,  far  more  valuable  things 
than  any  man's  right  to  be  summoned  on  a  jury  will  suffer  seriously." 


884  THE  SUPREME  COURT 

In  1888,  however,  the  Court  rendered  two  decisions 
which  practically  put  an  end  to  attempts  on  the  part 
of  the  Federal  Government  to  settle  the  negro  ques- 
tion by  means  of  indictments  in  the  Federal  Courts. 
In  United  States  v.  Harris^  106  U.  S.  629,  which  involved 
the  constitutionality  of  section  two  of  the  Ku  Klux  Act 
of  April  20,  1871,  making  it  criminal  for  two  or  more 
persons  to  conspire  or  go  in  disguise  upon  the  highway 
or  upon  another's  premises  for  the  purpose  of  depriv- 
ing any  persons  of  the  equal  protection  of  the  laws  and 
privileges  and  immunities  under  the  laws,  the  Court 
held  the  section  invalid,  as  unwarranted  by  the  pro- 
visions of  any  of  the  Amendments,  which,  in  granting 
to  Congress  the  power  to  enforce  their  provisions,  did 
not  authorize  Congress  to  legislate  directly  as  to  the 
acts  of  private  persons.^  In  the  Civil  Rights  Cases y 
109  U.  S.  3,  decided  October  15,  1883,  the  Civil  Rights 
Act  of  March  1, 1875,  was  finally  held  unconstitutional. 
This  statute  had  made  it  a  crime  for  any  person  to 
deny  full  and  equal  enjoyment  of  the  accommodation 
of  inns,  public  conveyances  and  places  of  public  amuse- 
ment. The  Court,  through  Judge  Bradley,  held  the 
law  to  be  beyond  the  power  of  Congress,  and  again 
stated  that  the  Fourteenth  Amendment  did  not  invest 
Congress  with  power  to  legislate  on  subjects  which 
are  within  the  domain  of  State  legislation,  or  to  create 
a  code  of  municipal  law  for  the  regulation  of  private 

^  The  Nation,  April  20, 1871»  at  the  time  of  the  passage  of  this  Ktt  Klux  Act 
had  accurately  predicted  the  decision  of  the  Court  as  to  its  validity,  and  had  said : 
"Its  central  idea  develops  itself  into  apian  by  which  the  United  States  Courts  may 
exercise  full  criminal  and  civil  jurisdiction  over  any  and  all  acts  of  violence  to  the  per- 
son and  property  of  private  citizens ;  by  which,  in  short.  Congress  and  the  National 
tribunals  may  assume  and  wield  a  complete  police  power  throughout  the  States." 
See  contra,  Amer,  Law  Rev,  (1870),  V,  249.  After  the  decision  of  the  case,  the 
Nation  said,  Aug.  81, 1882,  that  for  its  "disloyal"  view  of  the  subject  in  1871,  "we 
were  severely  criticised,  at  the  time,  by  those  who,  like  the  late  Mr.  Sunmer,  thought 
that  what  the  country  wanted  was  'the  centralization  of  liberty'  and  'the  impe- 
rialism of  equal  rights/  Nevertheless,  the  view  we  advanced  is  precisely  that  now 
laid  down  by  the  Supreme  Court." 


THE  CIVIL  RIGHTS  ACTS  8Sfl 

rights,  but  only  authorized  Congress  to  enforce  its 
provisions  by  "appropriate  legislation  for  correcting 
the  effect  of  such  prohibited  State  laws  and  State  acts 
and  thus  to  render  them  effectually  null,  void  and  in- 
nocuous/' In  other  words,  the  legislation  which  Con- 
gress was  authorized  to  adopt  was  "not  general  leg- 
islation upon  the  rights  of  the  citizen,  but  corrective 
legislation."  Congress  could  not  step  into  the  do- 
main of  local  jurisprudence  and  lay  down  rules  for  the 
conduct  of  individuals  in  society  towards  each  other. 
The  Court  further  held  that  refusal  of  accommodation 
to  a  negro  could  not  be  justly  regarded  as  imposing  any 
badge  of  slavery  or  servitude  upon  him;  and  it  said 
that  "it  would  be  running  the  slavery  argument  into 
the  ground,  to  make  it  apply  to  every  act  of  discrimi- 
nation which  a  person  may  see  fit  to  make  as  to  the 
guest  he  will  entertain'' ;  hence  the  statute  could  not 
be  upheld  as  a  proper  means  of  enforcing  the  Thir- 
teenth Amendment.  An  interesting  and  vivacious 
dissenting  opinion  was  given  by  Judge  Harlan,  who 
regarded  the  statute  as  clearly  valid  under  the  Thir- 
teenth Amendment,  and  said  that  he  could  not  "re- 
sist the  conclusion  that  the  substance  and  spirit  of 
the  recent  Amendments  of  the  Constitution  have  been 
sacrificed  by  a  subtle  and  ingenious  verbal  criticism." 
"The  decision  settles  the  point  forever,  that  the  Four- 
teenth Amendment  merely  adds  new  Umitations  upon 
State  action  to  those  already  existing  in  the  Consti- 
tution, and  does  not  change  in  any  way  the  funda- 
mental structure  of  the  Government,"  said  the  Nation ; 
and  the  Independent  said:  "It  is  important  for  both 
the  State  and  the  Federal  Government  to  keep  within 
the  sphere  assigned  to  it.  In  this  way,  and  in  no  other 
way,  can  our  duplicate  system  of  government  be  har- 
moniously and  successfully  worked;"  and  it  stated 


S36  THE  SUPREME  COURT 

that  though  '^several  leading  colored  men  have  ex- 
pressed great  indignation  and  disappointment,  the 
Court  is  clearly  right.  The  question  as  to  the  dass 
of  rights  involved  belongs  exclusively  to  the  States. 
There  is  the  proper  place  to  look  for  a  remedy  against 
any  abuse  of  these  rights."  ^  Harper's  Weekly  said 
that  the  decision  commended  itself  to  every  intelligent 
mind  and  showed  the  groundlessness  of  the  fears,  re- 
cently expressed,  of  a  'dangerous  centralizing  tend- 
ency in  the  government.*'  It  stated  that  the  decision 
was  in  strict  accord  with  "the  true  doctrine  of  National 
supremacy,  with  dii^inctly  defined  State  authority  — 
one  of  the  great  traditions  of  the  Supreme  Court '*; 
and  that  since  the  "long  and  terrible  Civil  War  sprang 
from  the  dogma  of  State  sovereignty,  invoked  to  pro- 
tect and  perpetuate  slavery,  it  was  natural  that,  at  its 
close,  the  tendency  to  magnify  the  National  authority 
should  have  been  very  strong,  and  especially  to  defend 
the  victims  of  slavery.  ...  In  a  calmer  time,  the  laws 
passed  under  that  hmnane  impulse  are  reviewed,  and 
when  found  to  be  incompatible  with  strict  constitutional 
authority,  they  are  set  aside.  It  is  another  illustration 
of  the  singular  wisdom  of  our  constitutional  system.** 
"The  Court  has  been  serving  a  useful  purpose  in  thus 
undoing  the  work  of  Congress,**  said  the  New  York 
Times;  and  it  urged  this  memorable  word  of  warning 
to  all  those  who  were  inclined  to  look  to  the  National 
Government  for  aid  against  local  abuses,  which  should 
be  cured  locally.  "The  fact  is,  that,  so  long  as  we 
have  State  governments,  within  their  field  of  action 
we  cannot  by  National  authority  prevent  the  con- 
sequences of  misgovemment.  The  people  of  the 
State  are  dependent  on  their  own  civilized  ideas  and 

I  Independent,  Feb.  1,  Oct.  25, 1883;  New  York  World,  Jan.  23,  1888;  Harper's 
Weekly,  Feb.  3, 1883;  New  York  Times,  Jan.  U,  1883;  New  York  Herald,  Jan.  90, 
1883. 


THE   CIVIL  RIGHTS  ACTS  837 

habits  for  the  benefits  of  a  civilized  administration  of 
laws." 

On  March  3, 1884,  in  Ex  parte  Yarborotigh^  110  U.  S. 
651,  that  portion  of  the  Civil  Rights  Acts  punishing 
conspiracy  *Ho  injure,  oppress,  threaten  or  intimidate 
any  citizen  in  the  free  exercise  or  enjoyment  of  any 
right  or  privilege  secured  to  him  by  the  Constitution 
or  laws  oi^  the  United  States ",  was  upheld  as  a  valid 
exercise  of  the  power  granted  to  Congress  to  enforce  the 
Fifteenth  Amendment  —  an  Amendment  which  the 
Court  said  "does,  praprio  vigore,  substantially  confer 
on  the  negro  the  right  to  vote,  and  Congress  has  the 
power  to  protect  and  enforce  that  right."  But  the 
Coiui;  further  held  that,  independently  of  this  Amend- 
ment, it  was  "essential  to  the  healthy  organization  of 
the  government  itself",  that  Congress  should  have 
the  power  to  protect  the  citizens  in  the  exercise  of  such 
constitutional  rights.^  The  case  in  question  involved 
serious  interference  in  Georgia  with  negro-voting  at 
a  Congressional  election ;  but,  as  Judge  Miller  pointed 
out,  there  were  other  forms  of  interference  with  elec- 
tions fully  as  serious,  against  which  Congress  must 
have  power  to  protect  the  Government,  viz.,  bribery : 

If  the  recurrence  of  such  acts  as  these  prisoners  stand  con- 
victed of  are  too  common  in  one  quarter  of  the  country,  and 
give  omen  of  danger  from  lawless  violence,  the  free  use  of 
money  in  elections,  arising  from  the  vast  growth  of  recent 
wealth  in  other  quarters,  presents  equal  cause  for  anxiety. 
If  the  Government  of  the  United  States  has  within  its  con- 
stitutional domain  no  authority  to  provide  against  these 
evils,  if  the  very  sources  of  power  may  be  poisoned  by  cor- 

1  "The  Ku  Kluz  Klan  gets  no  encouragement  from  the  Supreme  Court.  It  was 
decided  yeaterday*  in  the  well  known  Ku  Kluz  Cases  that  the  Federal  Government 
has  power  to  prevent  fraud  and  intimidation  at  elections.  The  most  remarkable 
thing  about  these  cases  is  that  the  question  should  ever  have  been  raised."  New 
York  Tribune,  March  4,  1884.  But  for  a  limitation  of  the  power  of  Congress  in 
respect  to  punishment  of  election  offenses,  see  James  v.  Bounnan,  190  U.  S.  127, 
inl90S. 


SS8  THE  SUPREME  COURT 

ruption  or  controlled  by  violence  and  outrage,  without  l^al 
restraint,  then,  indeed,  is  the  country  in  danger,  and  its 
best  powers,  its  highest  purposes,  the  hopes  which  it  inspires 
and  the  love  which  enshrines  it,  are  at  the  mercy  of  the 
combinations  of  those  who  respect  no  right  but  brute 
force  on  the  one  hand,  and  unprincipled  corruptionists  on 
the  other. 

This  case  in  1884  was  the  last  in  which  the  scope  of 
the  Civil  War  Amendments  was  considered  while  Waite 
was  Chief  Justice ;  and  the  decisions  of  the  Court,  in 
the  twenty  years  since  Waiters  death,  have  not  added 
substantially  to  the  doctrines  established.  That  the 
interpretation  given  by  the  Court  to  the  Amendments 
was  a  surprise  to  many  statesmen,  and  a  disappoint- 
ment  to  those  who  saw,  or  thought  they  saw,  in  them 
a  more  comprehensive  chart  of  liberty,  has  been  fre- 
quently pointed  out.  ^^It  was  information  that  was 
new  to  the  framers  .  .  .  when  they  were  told  that  by 
those  Amendments  it  was  not  intended  to  add  anything 
to  the  rights  of  one  citizen  as  against  another;  that 
it  was  not  designed  to  enable  Congress  to  legislate 
affirmatively  or  directly  for  the  protection  of  civil 
rights,  but  only  to  use  corrective  and  restraining 
measiu*es  as  against  the  States  so  as  to  secure  to  the 
black  race  the  right  to  be  dealt  with  as  equals.  It 
was  information  that  was  new,  as  well  as  unwelcome, 
that  the  provisions  creating  National  citizenship  and 
prohibiting  the  abridgement  of  the  privileges  thereof 
•  •  •  added  nothing  to  existing  rights,  but  simply  pro- 
vided additional  guarantees  for  such  as  already  existed/' 
Nevertheless,  as  a  historian  of  the  Court  has  well  said : 
"Now,  after  the  lapse  of  years,  when  the  temper  and 
spirit  in  which  the  text  of  the  Amendments  was  penned 
have  cooled  and  the  views  of  men  have  matured,  it 
is  seen  that  the  value  of  the  Coiui:  as  the  great  con- 


THE  CIVIL  RIGHTS  ACTS  839 

servative  department  of  the  Government  was  never 
greater  than  then/*  ^ 

As  a  result  of  the  above  cases,  the  effect  of  the 
Amendments  upon  the  negro  race  may  be  summed  up 
as  follows.  The  first  section  of  the  Fourteenth  Amend- 
ment is  a  prohibitory  measure,  and  the  prohibitions 
operate  against  the  States  only,  and  not  against  acts 
of  private  persons ;  the  fifth  section  only  gives  Congress 
power,  by  general  legislation,  to  enforce  these  pro- 
hibitions, and  Congress  may,  within  bounds,  provide 
the  modes  of  redress  against  individuals  when  a  State 
has  violated  the  prohibitions;  and  though  Congress 
cannot  act  directly  against  the  States,  Congress  may 
regulate  the  method  of  appeal  to  United  States  Courts 
by  any  person  whose  right  under  the  Amendment  has 
been  affected  by  action  of  the  States.  As  to  the  Fif- 
teenth Amendment,  though  theoretically  it  is  capable 
of  being  enforced  to  a  certain  extent  by  direct  Congres- 
sional action.  Congress  has,  in  fact,  taken  few  steps 
towards  such  enforcement;  and  only  a  few  acts  of  a 
State  or  of  a  State  oflScer  have  been  found  by  the 
Courts  to  violate  it.  Meanwhile,  the  Southern  States, 
by  constitutional  and  statutory  provisions,  which  have 
been  in  general  upheld  by  the  Court,  have  found 
methods  of  limiting  the  negro  right  to  vote.*    Of  the 

^  See  Address  of  Samuel  Shellabarger  at  the  Bar  Meeting,  on  Blaicfa  96,  1888, 
on  the  death  of  Chief  Justice  Waite,  126  U.  S.  app. ;  History  qf  the  Suprems  Court 
qfthe  United  States,  by  Hampton  L.  Carson  (1889),  485. 

>  The  Fourteenth  Amendment  and  the  States  (1912),  by  Charles  Wallace  Collins, 
67;  Is  the  Fifteenth  Amendment  Void?  by  A.  W.  Mason,  Harv.  Law  Res,  (1910), 
XXin;  LegislaHoe  and  Judicial  History  of  the  Fifteenth  Amendment  (1909),  by 
John  Mowry  Blathews ;  The  Fifteenth  Amendment,  by  William  C.  Coleman,  Colum' 
Ina  Law  Ree,  (1910),  X;  Constitutionality  cf  Race  DistincHons  and  the  Baliimore 
Negro  Segregation  Case,  ibid.  (1011),  XI.  See  American  Political  Ideas  (1920), 
by  Charles  E.  Merriam :  "In  1890,  Mississippi  began  the  process  of  constitutional 
limitation  of  the  right  to  vote  which  has  been  carried  on  until  the  colored  vote  in 
the  South  has  been  rendered  almost  ineffective.  This  result  has  been  brought 
about  by  means  of  educational  requirements,  property  qualifications  and  the  poll 
tax.  The  so-called  'grandfather'  clauses  were  instituted  and  the  whites  eiduded 
by  other  provisionB  were  included  by  stipulating  that  descendants  of  those  who 


S40  THE  SUPREME  COURT 

Enforcement  Laws  enacted  in  the  Reconstruction 
period,  only  a  small  part  remain  even  nominally  in 
force.  Of  the  forty-seven  sections  of  the  three  statutes, 
forty-two  have  either  been  repealed  directly,  or  ren- 
dered obsolete  by  such  laws  as  the  Disabilities  Act  of 
1898,  or  declared  invalid  by  the  Court;  and  as  has 
been  well  said,  they  have  disappeared,  because  "they 
were  in  fact  out  of  joint  with  the  times.  They  did 
not  square  with  public  consciousness,  either  North  or 
South.  They  belonged  logically  to  a  more  arbitrary 
period.  They  fitted  a  condition  of  war,  not  of  peace, 
and  suggested  autocracy,  rather  than  a  democracy."  ^ 
While  the  Court  was  thus  greatly  restricting  the 
National  authority  under  the  War  Amendments  to  the 
Constitution,  its  trend  towards  the  enlargement  of  the 
field  and  importance  of  the  sovereignty  of  the  States 
and  especially  of  the  State  police  power  was  also  clearly 
marked  by  the  doctrine  which  it  now  announced  in 
cases  arising  under  the  Impairment  of  Obligation  of 
Contract  Clause  of  the  Constitution.  As  early  as 
1878,  in  Beer  Co.  v.  Massachusetts^  97  U.  S.  25,  it  had 
shown  that  it  was  prepared  to  go  to  great  lengths  in 
sustaining  State  legislation  interfering  with  corpo- 
rate charters ;  but  it  was  not  imtil  1880  that,  in  Stone 
V.  Mississippi^  101  U.  S.  814,  it  rendered  the  decision 
which  greatly  modified  the  doctrines  of  the  Dartmouth 
College  Case  as  to  the  degree  of  control  over  its  cor- 

were  Toten  in  the  year  1867,  might  be  registered."  South  Carolioa  adopted  such 
proviaions  in  1895,  Louisiana  in  1898,  Alabama  in  1901,  North  Carolina  and  Vir- 
ginia in  1902,  Georgia  in  1908.  In  general,  the  Supreme  Court  has  upheld  these 
provisions ;  see  WiUianu  v.  Musissippi  (1898),  170  U.  S.  218 ;  Giles  v.  Harris  (1903), 
189  U.  S.  475.  In  Ouinn  v.  United  States  (1917),  288  U.  S.  847,  however,  the 
"grandfather"  clause  of  Oklahoma  was  held  unconstitutional.  See  also  The  Right 
qf  the  Federal  Courts  to  Punish  Offenders  against  the  Ballot  Box,  by  D.  H.  Pingrey, 
Arner.  Law  Reg.  (1890),  XXXVII ;  Racial  Discnminaium,  by  D.  H.  Pingrey,  ilfid. 
(1892),  XL. 

1  The  Federal  Enforcement  Ads,  by  William  W.  Davis»  Studies  on  Southern  His- 
tory and  Polities  (1914). 


THE  CIVIL  RIGHTS  ACTS  841 

porations  retained  by  a  State;  and  while  admitting 
that  the  doctrines  of  that  ease  had  ^'become  so  im- 
bedded in  the  jurisprudence  of  the  United  States  as 
to  make  them,  to  all  intents  and  purposes,  a  part  of 
the  Constitution  itself",  it  nevertheless  read  into  those 
doctrines  an  exception  which,  never  before  so  distinctly 
announced,  produced  a  profound  effect  on  the  rela- 
tions of  the  State  toward  its  corporations,^  The  facts 
of  the  case  were  as  follows :  lotteries  had  been  illegal 
in  Mississippi  prior  to  1867,  but  in  that  year  the  '*  car- 
pet-bag" government  chartered  a  lottery  corporation 
in  consideration  of  the  payment  of  further  sums  and  a 
percentage  of  its  receipts;  when  the  people  of  Mis- 
sissippi adopted  their  Constitution  in  1868,  ^'with  a 
view  to  the  resumption  of  their  political  rights  as 
one  of  the  United  States",  they  embodied  in  it  a 
prohibition  of  all  lotteries.  This  Constitution,  it  was 
claimed  by  the  corporation,  was  an  impairment  of  the 
obligation  of  its  contract  with  the  State.  The  case 
was  argued  by  Philip  Phillips  against  A.  M.  Clayton 
and  Van  H.  Manning.  The  Court,  in  a  notable  opin- 
ion by  Chief  Justice  Waite,  held  that  the  existence  of 
any  contract  which  might  be  impaired  depended  on  the 
authority  of  the  Legislature  to  bind  the  State;  and 
that  while  the  Legislature  might  make  irrevocable 
grants  of  property  and  franchises,  it  could  not  "bar- 
gain away  the  public  health  or  the  public  morals", 
i.e.  its  police  power.  "Government  is  organized  with 
a  view  to  their  preservation,  and  cannot  divest  itself 
of  the  power  to  provide  for  them.  •  •  •  The  contracts 
which  the  Constitution  protects  are  those  that  relate 
to   property   rights,   not   governmental."    Hence,   it 

^  See  previous  cases,  Boyd  v.  Alabama  (1877),  94  U.  S.  645 ;  Beer  Co.  v.  Magsor 
ehuetU  (1878),  97  U.  S.  25,  and  NorthwwUm  Fertilizing  Co,  v.  Htfde  Park  (1878), 
97  U.  S.  659;  see,  however.  New  Orleans  v.  EotuUm  (1886),  119  U.  S.  265,  where 
the  Louisiana  Constitution  itself  protected  the  lottery. 


342  THE  SUPREME  COURT 

held  that  a  corporation  acceptmg  a  lottery  charter 
only  acquired  a  permit  or  license,  which  was  subject 
to  future  legislative  or  constitutional  control  or  with- 
drawal, if  deemed  advisable  or  necessary  for  the  public 
morality.  This  doctrine  that  a  State  Legislature 
might  not,  by  contract,  limit  the  future  exercise  of  the 
State  police  power  over  the  subject  matter  of  the  con- 
tract was  again  set  forth  in  Butchers  Union  etc.  Co.  v. 
Crescent  City  Co.,  Ill  U.  S.  746,  in  1884.  In  this 
case,  Louisiana  had  in  1869  granted  to  a  slaughterhouse 
company  a  twenty-five  year  monopoly  (a  monopoly 
which  the  Court  had  sustained  in  the  Slaughterhouse 
Cases  in  1873),  but  under  the  provisions  of  the  State 
Constitution  of  1879,  which  forbade  the  existence  of 
a  monopoly,  the  State  granted  slaughtering  rights  to 
another  corporation.  The  Court  held  that,  since  the 
original  monopoly  had  been  created  by  the  State  in 
its  exercise  of  the  police  power,  the  State  might,  in  be- 
half of  pubUc  health,  alter  its  view  and  destroy  sudi 
a  monopoly,  and  that  its  action  did  not  impair  the  obli- 
gation of  the  contract  contained  in  its  prior  law.  This 
decision  undoubtedly  went  to  great  extremes  in  up- 
holding the  authority  of  the  States  over  rights  granted 
by  corporate  charters ;  and  it  was  viewed  with  appre- 
hension by  the  conservative  portion  of  the  public. 
"The  Supreme  Court  of  the  United  States  has  just 
made  a  new  anti-monopoly  decision  which  is  of  great 
importance  in  its  bearing  on  rights  of  property  and  con- 
tracts under  the  Constitution,"  said  the  Nation.  "The 
curious  thing  in  this  case  is,  that  there  is  nothing  on  the 
face  of  the  opinion  to  show  that  the  public  health  in  New 
Orleans  would  be  at  all  safer  with  the  slaughterhouse  bus- 
iness in  the  hands  of  several  companies,  than  in  the  hands 
of  one.  The  Constitutional  Amendment,  moreover, 
is  distinctly  directed  at  the  'monopoly'  feature  of  the 


THE   CIVIL  RIGHTS  ACTS  843 

contract ;  and,  as  far  as  we  can  see,  the  only  effect  of 
the  case  is  to  give  any  State  the  right  to  destroy  the 
obligation  of  the  most  solemn  contracts,  provided  the 
Judges  at  Washington  can  extract  from  its  action  some 
shadow  of  a  reason,  growing  out  of  what  they  regard 
as  the  cause  of  'health'  or  'morals/  This  is  a  wide 
definition  of  the  police  power,  and  gives  the  Supreme 
Court  and  the  State  Legislatures  a  power  of  interfer- 
ence with  contracts  and  property,  such  as  nobody  ever 
dreamed  they  possessed.  Take  this  decision  in  con- 
nection with  that  on  the  legal  tender  question,  and 
compare  the  two.  Is  it  not  plain  that  the  Judges  have 
adopted  a  latitudinarian  system  of  construction,  which 
may  make  lawyers  and  laymen  alike  look  forward,  with 
less  apprehension  than  they  otherwise  would,  to  the 
infusion  of  some  new  blood  into  the  Court,  as  the  con- 
sequence of  a  change  of  parties  ?  "  * 

*  Nation.  Aug.  28, 1884. 


CHAPTER  TmRTY-FIVE 

INCREASE  OP  NATIONALISM 

1881-1887 

After  a  period  of  seven  years  without  substantial 
alteration  of  the  personnel  of  the  Court,  three  changes 
occurred  in  the  years  1881  and  1882,  which  seem  to 
have  had  a  profound  effect  upon  the  future  tendency 
of  its  decisions.  On  January  21,  1881,  Judge  Swayne 
resigned,  at  the  comparatively  youthful  age  of  seventy- 
six,  and  after  nineteen  years  of  judicial  service ;  ^ 
and  on  March  14,  1881,  President  Garfield  appointed 
in  his  place  Stanley  Matthews  of  Ohio.  Matthews 
was  fifty-six  years  old;  he  had  served  as  a  United 
States  Attorney  under  President  Buchanan,  and  had 
been  a  Republican  Senator  from  Ohio  from  1877  to 
1879.  He  had  been  previously  appointed  to  a  place 
on  the  Court  by  President  Hayes  in  the  closing  days 
of  his  Administration;  but  the  Senate,  for  political 
reasons  and  because  of  newspaper  charges  that  he  was 
too  closely  allied  with  corporate  interests,  had  failed 
to  confirm  him.  This  second  nomination  was  again  the 
subject  of  great  criticism  and  opposition ;  but  the  Sen- 
ate, finding  insufficient  grounds  for  any  of  the  charges, 
confirmed  his  appointment  on  May  12,  by  the  dose  vote 
of  twenty-four  to  twenty-three.  As  has  so  often  hap- 
pened, later  events  proved  Matthews  to  be  a  wise  and 

1  See  note  on  the  death  of  Swayne»  June  8, 1884,  Amer,  Law  Rev.  (1884),  XVUh 


"  s 
Si 

p  I 


INCREASE  OP  NATIONALISM  845 

upright  jurist,  and  he  "lived  to  hear  his  detractors 
sound  his  praise/'  ^ 

In  the  same  year,  on  July  25,  1881,  Judge  Cliflford 
died,  at  the  age  of  seventy-eight  after  twenty-three 
years  on  the  Bench ;  *  and  in  his  place  President  Arthur 
appointed  Horace  Gray  of  Massachusetts,  on  Decem- 
ber 19,  1881.  Gray  was  confirmed,  the  next  day,  by 
a  vote  of  fifty-one  to  five;  he  was  then  fifty-three 
years  of  age,  and  had  served  as  Judge  of  the  Supreme 
Judicial  Court  of  Massachusetts  since  1864,  and  as 
Chief  Justice  since  1873.'  In  1882,  Judge  Himt,  who 
had  been  incapacitated  from  serving  on  the  Bench  for 
the  past  five  years,  resigned;  and  President  Arthur, 
to  the  siuprise  of  most  of  the  Bar,  filled  the  vacant 
position  by  the  appointment  of  Roscoe  Conkling  of 
New  York,  on  February  24,  1882.    This  action  raised 

^  Hayes  sent  the  name  of  Matthews  to  the  Senate,  Jan.  26,  1881.  See  violent 
editorials  against  Matthews  in  the  New  York  Sun,  Jan.  27,  Feb.  1,  2,  4,  9, 11,  12, 
16,  19,  March  7,  19,  23,  24,  29,  May  12,  IS,  1881 ;  see  also  Stanley  Matthetos,  by 
Charles  T.  Grove,  in  Oreat  American  Lawyere  (1908),  VII.  In  Life  o/  RuXherfard 
Birchard  Hayes  (1914),  by  Charles  R.  Williams,  II,  327,  note,  it  is  said  that  "the 
appointment  of  Matthews  was  received  by  a  large  part  of  the  press  with  a  storm 
of  disapproval  because  Mr.  Matthews  had  been  a  corporation  attorney.  Mr.  Mat- 
thews proved  on  the  Bench  that  Mr.  Hayes'  judgment  of  his  character  and  fitness 
was  altogether  sound." 

*  The  Nation,  July  28, 1881,  said  as  to  Oifford :  "His  mental  faculties  had  been 
impaired  for  some  time  previous  to  his  death,  and  his  place  on  the  Bench  has  been 
practically  vacant,  in  consequence.  He  refused  to  resign,  however,  in  the  hope 
that  the  election  of  a  Democratic  President  might  render  certain  the  appointment 
of  a  Democratic  successor.  ...  As  a  Judge,  his  industry  and  conscientious  ac- 
curacy were  remarkable,  as  well  as  the  rigidity  of  his  political  convictions.  .  .  . 
His  partisanship,  however,  was  chiefly  the  result  of  the  narrow  legal  view  of  the 
relation  of  the  States  to  the  General  Government  which  the  old-fashioned  New 
England  Democrat  always  took,  and  bore  no  resemblance  to  the  bitter  and  unscru- 
pulous spirit  of  faction  with  which  the  politics  of  our  day  threatens  to  taint  the 
Judiciary."  The  BowUm  Daily  AdoeHieer,  July  26, 1881,  said  as  to  Clifford :  "  With- 
out brilliant  qualities,  he  had  what  was  far  more  serviceable,  unfailing  good  sense, 
dear  judgment,  boundless  capacity  for  labor,  a  capacious  memory  and  great  love 
of  justice."  See  also  Amer,  Law  Rev.  (1881),  XV,  686.  For  a  violent  expression 
of  the  views  of  Clifford's  political  opponents,  see  letters  of  "Warrington"  in  Spring- 
fidd  Weekly  Republican,  April  1,  1868,  Dec.  18,  1869. 

*See  Amer.  Law  Ree.  (1882),  XVI,  187;  the  Nation,  Dec.  22,  1881,  spoke  of 
Gray's  "  conspicuous  fitness  for  the  position" ;  and  see  especially  tributes  to  Gray 
after  his  death  by  Charles  Francis  Adams  and  by  Creorge  F.  Hoar,  in  Mase,  Hiel. 
8oe.Proe..edSer..X\l.  XVIII. 


846  THE  SUPREME  COURT 

a  storm  of  disapproval.  '^No  nomination  could  have 
surprised  the  country  more,"  said  Harper^ s  Weekly. 
"The  nomination  of  Gray  has  been  received  with 
universal  approval,  that  of  Conkling  with  universal 
amazement,"  and  it  stated  that  Conkling's  career  as 
a  politician  had  not  inspired  the  country  with  confi- 
dence in  him  as  a  magistrate,  and  that  he  was  ^^singu- 
larly  unfitted  to  be  a  Judge,"  "Mr.  Conkling  is  a 
lawyer  only  in  name,"  said  the  Nation^  "and  must  make 
a  poor  Judge.  He  has  passed  his  life  in  politics.  •  •  . 
Legal  learning,  he  has  not.  .  •  .  The  mystery  is 
deepened  when  we  reflect  that  he  has  been  offered  the 
Chief  Justiceship  of  the  same  Court  once  before,  and 
declined  it  as  beneath  his  notice."  While  this  criticism 
of  Conkling's  legal  ability  was  probably  imfair,  never- 
theless, his  political  career  had  not  won  for  him  the 
confidence  of  the  commimity.  Conkling,  however, 
after  being  confirmed  by  the  Senate  on  March  2,  by  a 
vote  of  thirty-nine  to  twelve,  settled  the  controversy 
by  declining  the  position.  Thereupon,  on  March  13, 
1882,  President  Arthur,  to  the  complete  satisfaction 
of  the  Bar,  appointed  Samuel  Blatchf ord  of  New  York. 
Blatchford,  who  was  confirmed,  March  27,  was  sixty- 
two  years  of  age,  and  had  been  Judge  of  the  United 
States  District  and  Circuit  Courts  in  New  York  since 
1867.^ 

Judge  Woods  died  in  1881,  and  to  succeed  him  Presi- 
dent Cleveland  appointed  Lucius  Quintus  Cincinnatus 
Lamar  of  Mississippi,  on  December  6,  1887.  After 
opposition  in  the  Senate,  Lamar  was  confirmed,  on 
January  16,  1888,  by  a  vote  of  thirty-two  to  twenty- 
eight  ;  he  was  sixty-two  years  of  age,  and  though  he 
had  no  judicial  experience,  he  had  been  a  professor 

^Harper' 9  Weekly,  March  11,  26,  1882;  NaHm,  Maich  2,  1882;  Amer.  Law 
Rev.  (1882),  XVI,  835,  for  article  on  Blatchford;  see  also  Nation,  Aprfl  28,  1885, 
*'The  Preoideiit  and  the  Judiciary." 


INCREASE  OP  NATIONALISM  847 

of  law,  a  United  States  Senator  from  1875  to  1885,  and 
Secretary  of  the  Interior  for  the  previous  three  years. 
It  may  also  be  noted  that  he  was  the  first  Democrat 
appointed  on  the  Court  since  Judge  Field  in  1862,  and 
the  first  Judge  who  had  served  in  the  Confederate 
Army. 

With  these  changes  in  its  composition,  the  Court 
began  to  show  a  decided  reaction  from  the  policy  which 
it  had  maintained  from  1872  to  1880,  with  respect  to 
the  sovereign  powers  of  the  States.  A  marked  dis- 
position to  enhance  the  powers  of  the  National  Govern- 
ment by  a  liberal  construction  of  the  Constitution, 
and  to  widen  the  scope  of  the  jurisdiction  and  powers  of 
the  National  Judiciary  became  increasingly  apparent ; 
and  this  distinctly  Nationalistic  era  in  its  history  con- 
tinued for  the  next  ten  years. 

With  respect  to  one  class  of  cases,  however,  those  in- 
volving the  Commerce  Clause  of  the  Constitution,  the 
Court  had  shown  from  the  outset  a  tendency  to  limit 
strictly  the  sovereignty  of  the  States.  With  the  immense 
development  of  the  railroad  and  telegraph  systems  of 
the  country,  the  increased  facility  for  the  doing  of 
interstate  business  and  the  multiplication  of  commer- 
cial corporations  after  the  Civil  War,  this  Clause  of 
the  Constitution  began  to  assume  an  importance  in 
the  history  of  the  law  which  it  had  never  before  at- 
tained. Up  to  1840,  the  number  of  cases  in  Court 
requiring  its  construction  had  only  been  five,  and  up  to 
1860  only  twenty,  while  the  subjects  of  legislation  in- 
volved had  been  practically  confined  to  navigation,  im- 
migration, slavery  and  the  sale  of  liquor.  By  1870, 
the  nimiber  had  increased  to  thirty,  in  1880  to  seventy- 
seven,  and  in  1890  to  one  hundred  forty-eight,  in- 
volving a  great  variety  of  topics  —  State  action 
relative  to  peddlers,  liquor,  railroads,  and  telegraphs 


S48  THE  SUPREME  COURT 

and  immigration  and  quarantine  (both  seaboard  and 
internal),  and  manifold  forms  of  taxation.^ 

Under  Chief  Justice  Chase,  only  a  few  interstate 
commerce  cases  had  been  considered,  but  in  each  the 
Court  had  taken  a  pronoimced  stand  in  favor  of  State 
regulation;  and  in  the  case  which  had  the  most  im- 
portant effect  upon  the  business  of  the  country,  the 
Court  had  relegated  to  the  States  complete  control 
over  the  great  insurance  companies  of  the  country, 
by  holding  in  Paul  v.  Virginia^  8  WalL  168,  in  1869, 
that  the  negotiation  of  insurance  policies  and  contracts 
and  the  business  of  insurance  was  not  "conmierce'' 
within  the  purview  of  the  Constitution. 

From  the  beginning  of  Chief  Justice  Waiters  term 
of  oflfice,  however,  the  Court  reversed  its  policy  and  up- 
held the  National  authority  over  conunerce  in  practically 
every  case  of  importance  coming  before  it.  In  187S, 
the  Commerce  Clause  was  held  to  impose  considerable 
limitation  on  the  taxing  powers  of  the  States.  In 
Philadelphia  &  Reading  R.  R.  v.  Pennsylvania,  IB  Wall. 
232,  a  tonnage  freight  tax  was  held  invalid  as  being  a 
regulation  of  interstate  commerce,  when  applied  to 
freight  originating  or  carried  outside  the  State:  "It 
is  of  National  importance,"  said  Judge  Strong,  ""that 
over  that  subject  there  should  be  but  one  regulating 
power,  for  if  one  State  can  directly  tax  persons  or  prop- 
erty passing  through  it,  or  tax  them  indirectly  by  levy- 
ing a  tax  upon  their  transportation,  every  other  may ; 
and  thus  commercial  intercourse  between  States  re- 
mote from  each  other  may  be  destroyed.  The  produce 
of  Western  States  may  thus  be  effectually  excluded 
from  Eastern  markets,  for  though  it  might  bear  the 
imposition  of  a  single  tax,  it  would  be  crushed  under 

^  These  figures  are  takes  from  The  Commerce  Clause  qf  the  Federal  ConstUution 
(1898)»  £.  Parmalee  Prentice  and  John  6.  Egan. 


INCREASE  OF  NATIONALISM  S49 

the  load  of  many/*  The  eflfect  of  this  decision  upon 
the  development  of  the  great  transcontinental  trade, 
and  the  unrestricted  movement  of  wheat,  ore  and  coal 
in  this  country  cannot  be  overestimated.  At  the  same 
time,  the  Court,  by  its  decision  in  the  second  case  of 
Philadelphia  &  Reading  Railroad  v.  Pennsylvania, 
15  Wall.  232,  showed  that  it  was  not  inclined  to  defeat 
the  State's  power  to  tax,  any  further  than  was  abso- 
lutely necessary;  and  it  upheld  a  State  tax  on  the 
gross  receipts  of  railroads,  notwithstanding  that  such 
receipts  were  made  up  in  part  from  freights  trans- 
ported in  interstate  commerce.  "It  is  not  every- 
thing that  affects  commerce  that  amounts  to  a  regu- 
lation of  it  within  the  meaning  of  the  Constitution," 
said  Judge  Strong.  "The  ultimate  effect  of  the  tax 
may  be  to  increase  cost  of  transportation,  but  it  is  not 
a  tax  on  transportation  itself."  Judges  Miller,  Field 
and  Hunt,  however,  dissented,  holding  that  a  tax  on 
gross  receipts  was  in  fact  for  the  privilege  of  trans- 
portation within  the  border  of  the  States,  and  they 
laid  down  "the  broad  proposition  that  by  no  device  or 
evasion,  by  no  form  of  statutory  words,  can  a  State 
compel  citizens  of  other  States  to  pay  to  it  a  tax,  con- 
tribution or  toll,  for  the  privilege  of  having  their  goods 
transported  through  that  State"  and  that  "the  full 
recognition  of  this  principle  is  essential  to  the  har- 
monious future  of  this  country.  .  .  .  The  inter- 
state conmierce  today  far  exceeds  in  value  that  which 
is  foreign,  and  it  is  of  immense  importance  that  it 
should  not  be  shackled  by  restrictions  imposed  by  any 
State  in  order  to  place  on  others  the  burden  of  support- 
ing its  own  government,  as  was  done  in  the  days  of 
the  helpless  Confederation." 

In  1876,  the  Court  held  unconstitutional  a  Missouri 
statute  imposing  a  license  tax  on  persons  peddling  gooda 


360  THE  SUPREME  COURT 

of  foreign  origin,  in  Welton  v.  Missouri^  91  U.  S-  275 ; 
but  it  still  declined  to  lay  down  any  general  rule  as  to 
the  extent  of  the  scope  of  the  interstate  commerce 
clause,  saying  that:  "It  would  be  premature  to  state 
any  rule  which  would  be  universal  in  its  application 
to  determine  when  the  conmiercial  power  of  the  Federal 
Government  over  a  commodity  has  ceased,  and  the 
power  of  the  State  has  commenced.  It  is  sufficient 
to  hold  now  that  the  commercial  power  continues  un- 
til the  commodity  has  ceased  to  be  the  subject  of  dis- 
criminating legislation  by  reason  of  its  foreign  charac- 
ter.*' ^  In  the  same  year,  the  Court  greatly  enhanced 
the  powers  of  the  National  Government  by  upholding 
the  exclusive  right  of  Congress  to  regulate  the  subject 
of  inmiigration  as  a  question  of  National  concern  sus- 
ceptible only  of  a  imiform  rule;  and  in  Henderson  v. 
New  York  and  Chy  Lung  v.  Freeman^  92  U.  S.  259  and 
275,  it  held  invalid  laws  of  New  York,  Louisiana  and 
California,  affecting  that  subject.^  One  result  of  this 
decision  was  the  enactment  of  the  first  general  Immi- 
gration law,  the  Act  of  August  3, 1882 ;  another  was  the 
aggravation  of  the  Anti-Chinese  agitation  in  California, 
and  the  disturbances  arising  out  of  this  troublesome 
question.  The  Nation  indorsed  the  Court's  action, 
as  "sound  and  wholesome",  and  stated  that  since  the 
question  of  immigration  was  National,  not  local,  and 
since  State  regulation  produced  confusion  and  in- 
justice. Congress  alone  must  regulate;   but  it  pointed 

^  In  connection  with  the  class  of  discriminatory  legislation  involved  in  this  case, 
see  Commercial  RetaUalion  Between  the  Siatee,  by  Edward  B.  Whitn^,  Amer, 
Law  Rev,  (1885),  XIX. 

'  The  New  York  World,  March  22,  26,  1896,  opposed  the  decision  as  an  infringe- 
ment of  the  right  of  the  State  to  protect  itself  against  pauperism.  The  New  York 
Times,  March  21,  24,  29,  pointed  out  that  since  immigration  had  been  held  to  be  a 
subject  which  concerned  all  the  States,  Federal  legislation  was  now  an  imperative 
duty  and  that  Congress  must  "take  some  action  giving  to  the  States  the  protection 
which  they  cannot  provide  for  themselves.**  See  also  Edye  v.  Robertson,  112  U.  S. 
580. 


INCREASE  OP  NATIONALISM  361 

out  that  ^Mt  appears  from  the  Anti-Chinese  outbreak 
on  the  Pacific  Coast  that  the  decision  is  felt  in  Cali- 
fornia to  be  a  blow  at  the  defences  erected  by  that 
State  against  the  Mongolian  invasion."  ^  The  con* 
tinuance  of  the  agitation  produced  by  this  decision 
resulted  in  the  negotiation  of  the  Treaty  with  China 
of  October  6,  1881,  and  in  the  later  Chinese  Exclusion 
Acts  of  1882,  1884  and  1888.  A  similar  class  of  State 
statutes  restricting  commerce  was  held  invalid  in 
Inman  Steamship  Co.  v.  Tinker^  94  U.  S.  238,  in  1877, 
in  which  a  tonnage  fee  imposed  by  New  York  on  all 
vessels  entering  its  ports  was  held  to  violate  the  pro- 
hibition of  the  Constitution  against  the  imposition  of 
a  tonnage  tax  by  a  State.  Judge  Swayne,  stating  that 
the  Commerce  Clauses  of  the  Constitution  "had  their 
origin  in  a  wise  and  salutary  policy",  said  that :  "The 
confusion  and  mischiefs  that  would  ensue  if  this  re- 
striction were  removed  are  too  obvious  to  require  com- 
ment. The  lesson  upon  the  subject  taught  by  the 
law  before  us  is  an  impressive  one."  In  1878,  a  Mis- 
souri  statute  prohibiting  the  entry  into  the  State  be- 
tween certain  months  of  the  year  of  any  Texas  or 
Mexican  cattle,  was  held  in  Hannibal  &  St.  Joseph 
R.  R.  V.  Huseriy  95  U.  S-  465,  to  be  an  inter- 
ference with  interstate  commerce.  The  Court  said 
that  a  State  "may  not,  under  the  cover  of  exerting  its 
police  powers,  substantially  prohibit  or  burden  either 
foreign  or  interstate  .  commerce  .  .  .  beyond  what 
is  absolutely  necessary  for  its  self-protection",  and  it 
stated  that,  as  the  range  of  the  police  powers  "some- 
times comes  very  near  to  the  field  committed  by  the 
Constitution  to  Congress,  it  is  the  duty  of  the  Court 
to  guard  vigilantly  against  any  needless  intrusion." 
This  case,  in  connection  with  the  case  on  the  immigra- 

1  See  also  Fottm'  v.  New  Orleana  (1877).  94  U.  S.  246. 


852  THE  SUPREME  COURT 

tion  law  of  New  York  decided  two  years  prior,  showed 
a  distinct  advance  in  the  disposition  of  the  Court  to 
restrict  the  doctrine  of  the  application  of  the  State 
police  power  in  matters  of  interstate  commerce.  A 
Reconstruction  statute  of  Louisiana  requiring  all  car- 
riers to  give  equal  rights  in  their  conveyances  to  all 
persons  without  discrimination  on  account  of  race  or 
color  was  held  invalid,  as  a  regulation  of  interstate 
commerce,  in  Hall  v.  De  Cuir,  95  U,  S.  485,  the  Court 
saying,  '"if  the  public  good  requires  such  legislation, 
it  must  come  from  Congress  and  not  from  the  States/' 
The  right  of  a  State  to  grant  a  charter  to  a  telegraph 
corporation  to  the  exclusion  of  another  such  corpora- 
tion doing  an  interstate  business  was  denied,  in  ISTS^ 
in  Pensacola  Telegraph  Co.  v.  Western  Union  Tele- 
graph  Co.,  96  U.  S.  1,  Chief  Justice  Waite  saying  that 
the  powers  granted  to  Congress  by  the  Constitution 
"are  not  confined  to  the  instrumentalities  of  commerce, 
of  the  postal  service  known  or  in  use  when  the  Consti- 
tution was  adopted,  but  they  keep  pace  with  the  prog- 
ress of  the  country,  and  adapt  themselves  to  the  new 
developments  of  time  and  circumstances.  ...  As 
they  were  intrusted  to  the  General  Government  for 
the  good  of  the  Nation,  it  is  not  only  the  right  but  the 
duty  of  Congress  to  see  to  it  that  intercourse  among 
the  States  and  the  transmission  of  intelligence  are  not 
obstructed  or  unnecessarily  encumbered  by  State  legis- 
lation. The  electric  telegraph  marks  an  epoch  in  the 
progress  of  time.  In  a  little  more  than  a  quarter  of  a 
century  it  has  changed  the  habits  of  business,  and  be- 
come one  of  the  necessities  of  commerce.  It  is  in- 
dispensable as  a  means  of  intercommunication,  but 
especially  is  it  so  in  conmiercial  transactions."  The 
fact  that  Congress,  by  the  Act  of  July  24,  1866,  had 
authorized  any  telegraph  company  to  construct  its 


INCREASE  OP  NATIONALISM  858 

line  along  any  of  the  military  or  post  roads  of  the  United 
States  was  held  to  "amount  to  a  prohibition  of  all  State 
monopolies  in  this  particular."  This  decision,  said  a 
prominent  law  journal  "promises  to  rank  in  unpor- 
tance  with  Othhons  v.  Ogden  and  the  Dartmouth  College 
Case.**  ^  The  limits  on  the  power  of  a  State  to  inter- 
fere with  interstate  commerce  carried  on  by  drummers 
were  set  forth  in  an  able  opinion  rendered  in  1887  in 
Rabbins  v.  Shelby  County  Taxing  Districts  120  U.  S. 
489,  in  which  it  was  stated  that  "in  the  matter  of  inter- 
state conunerce  the  United  States  are  but  one  country 
and  must  be  subject  to  one  system  of  regulations  and 
not  to  a  multitude  of  systems."  The  right  of  a  State 
to  prohibit  the  introduction  of  liquor  from  other  States 
by  a  common  carrier  was  denied  in  Bowman  v.  Chicago 
and  Northwestern  Ry.  Co.,  125  U.  S.  465,  in  1888,  and 
an  Iowa  statute  on  the  subject  was  held  invalid  as  a 
regulation  of  interstate   commerce. 

Each  of  these  cases  marked  an  advance  of  National 
power,  and  the  "centralizing  tendencies  of  the  Court" 
were  the  subject  of  much  comment  by  law  writers.* 
In  fact,  there  was  substantially  but  one  class  of  cases 
affecting  interstate  commerce  in  which  the  State  powers 
were  upheld,  namely,  those  involving  the  right  of  the 
State  to  control  its  bridges,  wharves  and  ferries.' 

1  Souihem  Law  Rev,  (1878),  n.  b.,  IV. 

'  Recent  Centralimng  Tendeneiee  in  the  Supreme  Court,  by  FVederic  P.  Powers, 
Pol.  8ei.  Qu.  (1890).  V. 

*  See  aUtnan  v.  Phiiadelphia  (1866),  8  Wall.  718;  Eeeanaba,  ete.  Co,  v.  Ckieago, 
Wiggine  Ferry  Co.  t.  Eaet  St.  Louis,  and  Parkereburg,  etc.  Co.  v.  ParkerAurg  (1888), 
107  U.  S.  678,  865,  691 ;  WiUameUe  Iron  Bridge  Co.  v.  Haieh  (1888),  125  U.  S.  1 ; 
and  see  also  Miller  v.  New  York  (1888),  109  U.  S.  885,  in  which  a  bill  in  equity  to 
enjoin  the  construction  of  the  Brooklyn  Bridge  on  the  ground  of  its  bdng  an  ob- 
struction to  nayigation  was  dismissed,  the  Court  holding  that  Congress  had  au- 
thorised the  structure  and  that  Congress  had  plenary  power  over  nayigation  under 
the  Commerce  Clause.  For  an  interesting  commentary  on  the  Court's  recession 
from  its  position  in  the  Wheeling  Bridge  Case,  in  favor  of  the  rights  of  the  States, 
see  The  Commerce  Clause  and  the  State,  by  A.  H.  Wintersteen,  Amer,  Law  Reg. 

(1889),  xxxvn. 

VOL.  ni  — 12 


354  THE  SUPREME  COURT 

None  of  the  Court's  decisions  on  the  Commerce 
Clause,  however,  so  seriously  impaired  the  power  of 
the  State  or  so  potently  affected  the  future  of  the  coun- 
try, as  its  final  decision,  in  1886,  settling  the  extent  of  the 
control  of  a  State  over  railroad  rates.  While  National 
regulation  of  all  railroad  rates  by  virtue  of  the  power 
contained  in  the  Commerce  Clause  had  been  urged  by 
eminent  jurists  as  early  as  the  year  1874,  as  the  only 
adequate  remedy  for  the  evils  then  existing  in  the 
railroad  situation,  the  country  and  the  Courts  were 
not  as  yet  prepared  for  what  then  seemed  a  radical 
measure.^  Nevertheless,  that  such  National  control 
was  contemplated  as  an  eventual  possibility  was  very 
interestingly  shown  in  an  opinion  rendered  by  Judge 
Bradley  in  1875,  in  Baltimore  and  Ohio  R.  R.  v.  Mary- 
land, 21  Wall.  456.  In  this  case,  the  railroad  charter 
granting  a  right  to  build  a  branch  between  Baltimore 
and  Washington,  fixed  the  maximum  fare  at  $2.50  and 
provided  that  one  fifth  of  the  passenger  receipts  should 
be  paid  to  the  State.  It  was  urged  by  the  railroad  that 
this  was  an  unconstitutional  interference  with  inter- 
state commerce.  The  Court,  however,  held  to  the  con- 
trary, and  in  answer  to  the  query,  **has  the  public  no 
remedy  against  such  exorbitant  fares  and  freights 
exacted  by  a  State  or  by  a  railroad  or  steamship  com- 
pany ?  "  said  that  if  any  "  system  of  exactions  be  es- 
tablished in  these  States,  as  materially  to  impede  the 

^  Railroad  Legislation,  by  C.  F.  Adams,  Jr.,  Amer.  Law  Rev,  (1867),  II;  Legt^" 
laHve  Control  of  Railroads,  by  S.  S.  Wallace,  Southern  Law  Rev.  (1874),  III ;  Legis- 
lative Control  of  Railroads,  by  F.  L.  Wells,  Western  Jurist  (1877),  Xll,  sayixig : 
**0f  late  years,  this  has  become  a  very  important  question,  accidents  on  railroads 
and  abuses  practiced  are  becoming  so  numerous."  The  Federal  Pouter  over  Comr 
meree  (1892),  by  W.  D.  Lewis;  The  Commerce  Clause  of  the  ConstiiutUm  (1908), 
by  F.  H.  Cooke ;  Law  of  Interstate  Commerce  (1905),  by  F.  N.  Judson ;  Regulation 
of  Commerce  under  the  Federal  Constitution  (1907),  by  T.  H.  Calvert;  American 
Railroad  Rates  (1905),  by  Walter  C.  Noyes;  Law  cf  Railroad  Rates  Regulation 
(1905),  by  Joseph  H.  and  Bruce  Wyman.  The  Legal,  Legislative  and  Economic 
Battle  over  Railroad  Rates,  by  William  W.  Cook,  Harv.  Law  Rev.  (1921), 
XXXV. 


INCREASE  OP  NATIONALISM  366 

passage  of  produce,  merchandise,  or  travel  from  one 
part  of  the  country  to  another,  it  is  hardly  to  be  sup- 
posed that  the  case  is  a  casus  omissus  in  the  Consti- 
tution. Commercially,  this  is  but  one  country,  and 
intercourse  between  all  its  parts  should  be  as  free  as 
due  compensation  to  the  carrier  interest  will  allow. 
This  is  demanded  by  the  *  general  welfare*  and  is  dic- 
tated by  the  spirit  of  the  Constitution  at  least.  Any 
local  interference  with  it  will  demand  from  the  National 
Legislature  the  exercise  of  all  the  just  powers  with 
which  it  is  clothed."  Whether  Congress  had  the  power 
*'to  establish  and  facilitate  the  means  of  communica- 
tion between  the  different  parts  of  the  country,  and 
thus  to  counteract  the  apprehended  impediments 
referred  to,"  Judge  Bradley  said,  "is  a  question  which 
has  exercised  the  profoundest  minds  of  the  country. 
.  .  .  But  it  is  to  be  hoped  that  no  occasion  will 
ever  arise  to  call  for  any  general  exercise  of  such  a 
power,  if  it  exists."  ^  In  1877,  in  the  Oranger  Cases, 
Chief  Justice  Waite  had  distinctly  stated  that  until 
Congress  should  act,  the  States  had  plenary  control 
of  rates,  whether  interstate  or  intrastate,  "so  far  as  they 
are  of  domestic  concern",  and  that  State  regulation  of 
railroads  operating  within  a  State  was  valid,  "even 
though  it  may  indirectly  aflPect  those  without  the 
State."  While  the  correctness  of  this  statement  was 
widely  doubted  by  many  members  of  the  Bar,  and 
received  strong  criticism  in  legal  journals,  it  was  ac- 
cepted generally  as  the  law,  until,  in  1886,  in  Waha^h, 
St.  Louis  and  Padjic  Ry.  Co.  v.  Illinois ,  118  U.  S.  557, 
the  Court  practically  overruled  the  Granger  Cases  in 
this  respect,  and  held  that  a  State  had  no  power  to 
regulate  railroad  rates  for  transportation  within  the 

^  See  especially  RegttlaHon  of  InUrstaie  Traffic  on  Railtoays  by  Congress,  by  Isaac 
F.  Redfield,  Amer.  Law  Reg.  (1874),  XXII;  Federal  Restraints  upon  Stale  Regula- 
tion of  RaUroad  Rates,  by  William  F.  Dana,  Harv,  Law  Rev.  (1895),  IX. 


856  THE  SUPREME  COURT 

State,  when  that  transportation  was  a  part  of  an  inter- 
state commerce  transaction.  "The  decision  is  of  the 
highest  importance/'  said  the  Nation.  "It  utterly 
demolishes  the  pretension  of  State  Legislatures  and 
railroad  commissions.  .  .  .  The  principles  are  very 
clearly  stated,  and  are  fundamental  to  the  existence 
of  the  Union  and  to  the  existence  of  trade."  ^  As  a 
result  of  this  decision,  the  railroad  question  became  a 
truly  National  problem,  and  there  arose  an  imperative 
demand  for  National  regulation.  That  such  regulation 
of  this  vitally  important  means  of  communication  be- 
tween the  States  should  have  been  deferred  until  so 
late  a  date  as  1887,  and  that  control  of  railroads  cross- 
ing State  boundary  lines  should  so  long  have  been  left 
exclusively  with  the  States,  are  singular  facts  in  our 
National  development.  From  the  year  1822,  when  it 
enacted  the  Cumberland  Road  Bill  (which  was  vetoed 
by  President  Monroe)  until  the  year  1862,  Congress 
had  undertaken  to  exercise  its  constitutional  power  to 
regulate  interstate  commerce  in  only  two  classes  of 
subjects  —  construction  of  interstate  bridges  and  exten- 
sion of  admiralty  jurisdiction.  In  1862,  Congress  in- 
corporated the  various  Pacific  Railroad  Companies; 
but  as  its  exercise  of  authority  in  these  cases  was  sup- 
posed by  many  legislators  and  jurists  to  arise  out  of 
the  "war  power"  or  to  be  based  on  the  Post-roads 
Clause  of  the  Constitution,  the  scope  of  the  Commerce 
Clause  in  connection  with  incorporation  and  regulation 
of  railroads  remained  still  an  unsettled  question.^ 

>  Nation.  Oct.  26, 1886. 

s  In  United  States  v.  Union  Pacific  R.  A.  Co.  (1875),  91  U.  S.  72,  the  Court  said 
that,  at  the  time  of  the  railroad's  charter  in  1862,  "the  war  of  the  rebellion  was 
in  progress;  and  the  country  had  become  alarmed  for  the  safety  of  our  Pacific 
possessions,  owing  to  complications  with  England" ;  that  the  road  was  a  military 
necessity  to  protect  an  exposed  frontier;  that  it  was  intended  to  open  up  "vast 
unpeopled  territory  lying  between  the  Missouri  and  the  Sacramento  Rivers  which 
was  practically  worthless  without  the  facilities  afforded  by  a  railroad";  that  it 


INCREASE  OP  NATIONALISM  857 

In  1866,  a  mild  and  tentative  move  was  made  towards 
the  exercise  of  its  power  of  National  regulation  when 
Congress,  at  the  instance  of  the  railroads  themselves, 
passed  an  act  authorizing  railroad  companies  chartered 
by  the  States  to  carry  passengers,  freight,  etc.,  "on 
their  way  from  any  State  to  another  State,  and  to  re- 
ceive compensation  therefor,  and  to  connect  with  roads 
of  other  States  so  as  to  form  continuous  lines  for  trans- 
portation of  the  same  to  the  place  of  destination." 
In  1873,  Congress  provided  that  "no  railway  within 
the  United  States  whose  road  forms  any  part  of  a  line 
or  road  over  which  cattle,  sheep,  swine  or  other  ani- 
mals shall  be  conveyed  from  one  State  to  another", 
should  confine  animals  for  longer  than  twenty-eight 
hours  without  unloading  for  water,  rest,  and  feeding. 
In  the  same  year,  the  Senate  authorized  the  Select 
Committee  on  Transportation  Routes  to  the  Seaboard 
to  investigate  and  report  "upon  the  subject  of  trans- 
portation between  the  interior  and  the  seaboard." 
This  Committee  reported  that  the  existing  defects  and 
abuses  were  insufficient  facilities,  unfair  discrimina- 
tion and  extortionate  charges  —  the  latter  due  to 
stock-watering,  capitalization  of  surplus  earnings,  con- 
struction rings,  extravagance  and  corruption  in  man- 
agement and  consolidations  of  companies.  In  1874, 
a  bill  moderately  regulating  railroads  was  passed  in 
the  House.  In  1878,  John  H.  Reagan  of  Texas  intro- 
duced in  the  House  a  bill  to  regulate  railroad  com- 
panies engaged  in  interstate  commerce.  In  1885,  the 
Senate  appointed  a  committee  to  investigate  the  sub- 
ject of  regulation  of  interstate  commerce  by  railroads, 

was  necessary  for  the  transportation  of  the  mails,  and  army  and  Indian  supplies ; 
that  it  was  not  then  conceived  possible  to  be  built  by  private  resources  alone ;  and 
that  though  it  had  actually  been  built  "at  less  cost  of  time  and  money  than  had 
been  considered  possible,  no  argument  can  be  drawn  from  the  wUdom  thai  comes 
ofim  the  fad." 


358  THE  SUPREME  COURT 

which  reported,  January  18,  1886 ;  and  as  a  result  of 
this  action.  Congress  enacted  the  Interstate  Commerce 
Commission  Act  of  February  4,  1887,  and  President 
Cleveland  appointed  the  first  Conmiission,  with  Judge 
Thomas  M.  Cooley  as  its  Chairman.  This  was  the 
first  broad  exercise  of  Congressional  power  over  inter- 
state common  carriers  —  a  power  which,  fifteen  years 
later,  was  destined  to  be  so  greatly  extended.  It  is 
to  be  noted  that  this  initial  step  was  regarded  with 
grave  apprehensions  by  the  State-Rights  Democrats.^ 
'"I  dread  to  set  in  motion  a  doubtful  and  dangerous 
power,  which  will  soon  become  a  factor  of  immense  in- 
fluence in  the  party  politics  of  the  Republic,"  said 
Senator  Morgan  of  Alabama,  in  the  debates  : 

If  Congress,  instead  of  holding  the  States  in  check  by  a 
constant  distrust  or  denial  of  their  powers,  will  open  their 
way  to  the  full  and  free  control  of  the  men  and  corporations 
engaged  in  domestic  commerce,  through  civil  and  criminal 
laws,  and  will  hold  over  the  States  its  corrective  authority 
so  as  to  prevent  any  of  them  from  doing  injustice  to  the 
other  States  or  their  people,  the  States  will  soon  settle  all 
the  knotty  problems  about  long  and  short  hauls,  pools, 
drawbacks,  bribes  and  bonuses,  and  will  close  the  doors 
of  their  penitentiaries  upon  those  who  offend  against  their 
laws,  made  to  secure  the  people  against  wrong  and  the 
honest  freedom  of  commerce  against  injustice  and  obstruc- 
tion. ...  I  admit  all  that  has  been  said  about  the  wrongs 
and  injustice  that  people  have  suffered  through  the  over- 
bearing insolence  and  oppression  of  the  railroad  companies. 
Their  greed  is  destructive  to  the  people,  and  the  govern- 
ments, from  whom  they  derived  their  powers ;  but  in  find- 
ing a  remedy  for  this  evil,  I  neither  wish  to  find  for  the 
people  a  new  master,  remote  from  them  and  their  influence, 
in  the  Congress  of  the  United  States,  nor  to  place  in  the 
hands  of  that  master  a  power  over  their  trade  and  traffic, 
more  dangerous  than  the  power  of  the  railroad  companies. 

^  ^S^h  Cong,,  2d  Sess.^  400,  Jan.  6,  1887, 


INCREASE  OF  NATIONALISM  869 

In  1888,  twenty-five  years  after  the  first  National 
railroad  charter  had  been  granted,  the  Court,  in  a 
striking  opinion  by  Judge  Bradley,  upheld  the  power  of 
Congress  to  establish  highways  and  bridges  from  State 
to  State  as  essential  to  its  complete  control  and  regu- 
lation of  interstate  commerce  —  California  v.  Central 
Pacific  R.  JR.,  127  U.  S.  1.  Thus  was  settled  the  great 
question  of  Internal  Improvements,  which,  since  the 
early  years  of  the  Nation,  had  been  a  topic  of  such 
sharp  political  division.^ 

In  connection  with  National  control  of  railroads 
under  the  Commerce  Clause,  such  National  regulation 
received  a  further  extension,  through  the  development 
of  substantive  doctrines  of  equity  and  commercial  law 
in  the  decisions  of  the  United  States  Courts.  By 
reason  of  the  financial  crisis,  the  Granger  legislation, 
and  the  corrupt  manipulations  of  promoters  and  stock- 
jobbers, applications  to  these  Courts  for  the  appoint- 
ment of  receivers  and  for  the  liberal  exercise  of  this 
extraordinary  jurisdiction  in  behalf  of  judgment  cred- 
itors,  bondholders  and  mortgagees,  increased  enor- 
mously in  number  between  1871  and  1878.  "No 
branch  of  equity  jurisprudence  has  developed  more 
rapidly  during  the  past  three  years  than  the  law  of 
receivers,"  said  a  leading  law  review  in  1876,  and  an- 
other spoke  of  "the  magnitude  of  the  proportion  of 
railroad  litigation.'*  ^  In  1879,  Chief  Justice  Waite 
remarked  in  Fosdick  v.  SchaU,  99  U.  S.  235,  that :  "Rail- 

^  See  Power  of  Congrm  to  Enact  Ineorporation  Laws,  by  Victor  Morawets,  Harv. 
Law  Rn.  (1918),  XXVI ;  and  see  especially,  WiUon  v.  Shaw  (1907),  204  U.  &  24. 

'  See  Right  of  Adion  agai'Mt  Receivers,  by  James  L.  High,  Southern  Law  Ree. 
(1876),  N.  8.,  II;  Receivers  of  Railways,  by  Leonard  Jones,  ibid,  (1878),  n.  b..  IV; 
Rights  of  Material  Men  Against  Mortgages,  ibid,  (1881),  n.  8.,  VII;  lAabilUy  of  Re- 
cevoers.  Western  Jurist  (1876),  X;  High  on  Receivers  (1876);  Claims  and  Equities 
Affecting  the  Priority  of  Railroad  Mortgages,  by  Leonard  A.  Jones,  Amer.  Law  Rev, 
(1878),  XII;  LiabUUies  Incurred  by  Receivers  of  RaUroads,  ibid,  (1888),  XVII; 
Railroad  Receiverships,  ibid,  (1886),  XIX;  Law  qf  Railroads  and  Other  Corporate 
Securitiea  (1879),  by  Leonard  A«  Jooea. 


860  THE  SUPREME  COURT 

road  mortgages  and  the  rights  of  raih*oad  mortgagees 
are  comparatively  new  in  the  history  of  judicial  pro- 
ceedings. They  are  peculiar  in  their  character  and 
affect  peculiar  interests."  And  he  pointed  out  that, 
in  receivership  proceedings  in  equity,  concessions  from 
strict  legal  rights  must  oftentimes  be  made,  to  secure 
advantages  that  would  operate  for  the  general  good  of 
all  interested.  '^This  results  almost  as  a  matter  of 
necessity  from  the  peculiar  circumstances  which  sur- 
roimd  such  litigation."  The  case  was  an  interesting 
example  of  the  flexibility  of  the  law  of  equity  audits 
adaptation  to  new  and  modem  conditions  of  life  and 
business;  for  the  Court  held  that  a  railroad  receiver 
might  be  authorized  to  pay  debts  incurred  for  labor, 
supplies,  and  permanent  improvements,  in  priority 
to  the  claims  of  the  mortgage  bondholders.  In  1881, 
the  whole  subject  of  railroad  receivership  was  given 
thorough  consideration  by  the  Court  in  Barton  v. 
Barbour^  104  U.  S.  126,  in  which  the  question  was  in- 
volved whether  a  railroad  receiver  could  be  sued  with- 
out permission  of  the  Court  appointing  him.  The 
Court,  in  holding  that  such  permission  must  be  ob- 
tained, stated  that  railroad  insolvencies  and  receiver- 
ships presented  a  ''new  and  changed  condition  of 
things";  that  unlike  the  procedure  with  reference  to 
insolvent  banks,  insurance  and  manufacturing  com- 
panies, where  receivers  were  appointed  to  wind  up  the 
company  and  distribute  the  assets,  a  railroad  receiver 
was  appointed,  as  a  rule,  to  continue  the  operation 
of  the  railroad ;  that  the  public  was  vastly  interested 
in  such  a  receivership,  and  it  was  because  of  this  pub- 
lic right  that  a  Courtis  receiver  should  not  be  inter- 
fered with  by  suits  maintained  in  another  jurisdiction. 
Judge  Miller  dissented,  saying  that:  "The  rapid  ab- 
sorption of  the  business  of  the  coimtry  of  every  char- 


INCREASE  OF  NATIONALISM  861 

acter  by  legally  authorized  corporations,  while  produc- 
tive of  much  good  to  the  public,  is  beginning  also  to 
develop  many  evils.  Not  the  least  of  these  evils  arise 
from  the  failure  to  pay  their  debts  and  perform  the 
duties  which  by  the  terms  of  their  organization  they 
have  assumed."  He  pointed  out  that  in  his  Circuit, 
of  the  fifty  or  more  railroads,  '"hardly  half  a  dozen 
have  escaped  the  hands  of  the  receiver " ;  that  the  re- 
ceiver rarely  paid  the  debts  of  the  company,  but  fre- 
quently injured  prior  creditors  by  creating  new  and 
superior  liens  on  the  property.  He  believed  that  no 
authority  or  principle  could  be  found  to  support  the 
Court's  decision,  and  that  a  plaintiff  injured  by  the 
operation  or  breach  of  contract  by  a  receiver  ought  to 
be  allowed  to  sue  such  receiver  in  any  Court  which  had 
jurisdiction.^ 

In  1884,  a  new  form  of  receivership  was  originated  in 
the  Circuit  Courts  in  the  Wabash  Railroad  Cases, 
through  an  application  made  for  the  first  time  by  the 
railroad  company  itself  for  the  appointment  of  a  re- 
ceiver. This  new  precedent  was  soon  followed  by 
most  railroads  in  financial  straits.  The  result  of  this 
new  and  modem  development  of  an  old  equitable  doc- 
trine was  an  enormous  increase  in  the  work  of  these 
Courts  and  the  assumption  of  new  duties  and  new  re- 
sponsibilities, presenting  many  novel  questions  for  de- 
cision, and,  above  all,  requiring  the  control  of  railroads 
to  be  taken  from  the  hands  of  State  commissions  and 
State  officials  and  placed  in  the  custody  and  direction  of 
the  judicial  branch  of  the  National  Government.* 

1  For  an  early  case  of  the  appointment  of  a  receiver  to  wind  up  a  corporation, 
see  ConngUm  Drawbridge  Co.  v.  Shepherd  (1858),  21  How.  112,  and  Wkite  Water 
Valley  Canal  Co,  v.  Vallette  (1859),  21  How.  414;  for  one  of  the  earliest  cases  of 
appointment  of  a  receiver  to  run  a  railroad,  see  Broiuon  v.  La  Croese  and  Milwaukee 
R,  R.  (1864),  1  Wall.  405. 

*  See  Wabaeh  R.  R,  v.  Central  Trust  Co,,  22  Fed.  272,  20  Fed.  62S,  in  1884 ;  and 
Quiney,  etc.  R.  R,  v.  Humphreye  (1892),  145  U.  S.  82,  New-Faehioned  Receieerekipe^ 
by  D.  H.  Chamberlain,  Harv,  Law  Ree.  (1896),  X. 


862  THE  SUPREME  COURT 

One  further  form  of  regulation  of  the  raUroads  found 
expression  in  a  series  of  important  cases,  in  which  the 
extent  of  the  liability  of  railroad  corporations  and  of 
other  common  carriers  was  settled  by  decision  of  the 
Judiciary,  without  legislation  by  Congress.  In  1873, 
in  Michigan  Central  R.  R.  v.  Mineral  Springs  Manu- 
facturing  Co.,  16  Wall.  318,  the  Court  held  that,  though 
a  railroad  might  limit  its  common  law  liability  by 
special  contract  assented  to  by  the  consignor,  an  im- 
signed  general  notice  on  the  back  of  a  receipt  did  not 
constitute  such  a  contract,  even  though  taken  by  the 
contractor  without  dissent.  The  parties  were  not  on 
an  equality  in  their  dealing  with  each  other,  said  Judge 
Davis :  "The  law,  in  conceding  to  carriers  the  ability 
to  obtain  any  reasonable  qualifications  of  their  respon- 
sibility by  express  contract,  has  gone  as  far  in  this  di- 
rection as  pubHc  policy  will  allow.  To  relax  still  fur- 
ther the  strict  rules  of  common  law  applicable  to  them, 
by  presuming  acquiescence  in  the  conditions  on  which 
they  propose  to  carry  freight  when  they  have  no  right 
to  impose  them,  would,  in  our  opinion,  work  great  harm 
to  the  business  community."  In  New  York  Central 
JR.  R.  V.  Lockwood,  17  Wall.  357,  in  a  notable  opinion  by 
Judge  Bradley,  the  Court  held  that  a  common  carrier 
could  not  stipulate  for  exemption  from  responsibility 
for  the  negligence  of  himself  or  his  servants ;  that  the 
customer  had  no  real  freedom  of  choice,  no  reasonable 
and  practicable  alternative;  that  the  corporations 
were  in  a  position  to  control  the  business,  and  it  was 
against  public  policy  to  allow  them  to  use  this  public 
position  as  a  means  to  exempt  themselves  from  liabil- 
ity for  negligence.  "The  carrier  and  his  customer  do 
not  stand  on  a  footing  of  equality.  The  latter  is  only 
one  individual  of  a  million.  He  cannot  afford  to  higgle 
or  stand  out  and  seek  redress  in  the  Courts.     His  busi- 


INCREASE  OF  NATIONALISM  868 

ness  will  not  admit  such  a  course."  ^  In  1876,  in 
Bank  of  Kentucky  v.  Adams  Express  Co.^  93  U,  S.  174, 
it  was  held  that  public  policy  would  not  permit  an 
express  company  to  contract  for  exemption  for  loss 
by  fire  caused  by  the  negligence  of  its  agent,  a  rail- 
road company:  "The  foundation  of  the  rule  is,  that 
it  tends  to  the  greater  security  of  consignors,  who 
always  deal  with  such  carriers  at  a  disadvantage."  In 
1884,  in  Hart  v.  Pennsylvania  R.  JR.,  112  U.  S.  331,  the 
Court  upheld  a  form  of  contract  confining  the  carrier's 
liability  to  a  certain  valuation  of  the  shipment,  even 
in  case  of  loss  by  negligence.  In  1880,  in  Pennsylvania 
Co.  V.  Roy,  102  U.  S.  451,  the  liability  of  a  railroad  for 
injury  to  a  passenger  riding  in  a  Pullman  car  was  first 
adjudicated ;  and  in  Pickard  v.  Pullman  Southern  Car 
Co.y  117  U.  S.  34,  in  1886,  the  nature  of  the  sleeping 
car  business  was  considered,  in  a  case  holding  invalid 
a  statute  of  Tennessee  taxing  sleeping  cars  running  in 
interstate  commerce.  In  1884,  the  fellow-servant  rule 
(established  in  this  country  in  1841)  was  considered  in 
Chicago y  Milwaukee  and  St.  Paul  R.  R.  v.  Ross^  112 
U.  S.  377,  in  which  it  was  held  that  the  rule  should  not 
be  extended  to  apply  to  persons  having  supervision 
or  control ;  and  that,  therefore,  a  train  conductor  was 
not  a  fellow  servant  with  other  train  employees.     In 

^  Again  in  Smdhem  Express  Company  v.  CMweU  (1875),  21  Wall.  264,  the  Court 
oonadered  the  question  of  public  policy  in  relation  to  common  carriers,  upholding 
a  clause  in  an  express  company  contract  requiring  claims  for  loss  or  damages  to  be 
made  within  ninety  days.  "Common  carriers  do  not  deal  with  their  employers 
on  equal  terms,"  said  Judge  Strong.  "There  is,  in  a  very  important  senae^  a  ne- 
cessity for  their*  employment.  ...  In  fact,  they  are  without  competition,  except 
as  between  themselves,  and  that  they  are  thus  is,  in  most  cases,  a  consequence 
of  advantages  obtained  from  the  public.  It  is,  therefore,  just  that  they  are  not 
allowed  to  take  advantage  of  their  powers,  and  of  the  necessities  of  the  public  to 
exact  exemptions  from  that  measure  of  duty  which  public  policy  demands.  But 
that  which  was  public  policy  a  hundred  years  ago  has  undergone  changes  in  the 
progress  of  material  and  social  civilization.  There  is  less  danger  than  there  was  of 
collision  with  highwaymen.  Intelligence  is  more  rapidly  diffused.  It  is  more  ea^ 
to  trace  a  consignment  than  it  was.  .  .  .  The  business  of  common  carriers  is 
more  increaaed  and  subdivided.  .  .  .    Thus  his  hazard  is  greatly  increased.*' 


S64  THE  SUPREME  COURT 

1886,  it  was  held  in  the  Express  Cases^  117  U.  S.  1,  that 
raiboad  companies  were  not  required  at  common  law 
to  furnish  to  all  express  companies  equal  faciUties  for 
doing  business  upon  their  passenger  trains. 

While  National  control  over  the  instrumentalities 
of  interstate  commerce  was  thus  being  enhanced 
and  supported  by  judicial  decision,  the  Court,  since 
1879,  had  shown  its  increasingly  Nationalistic  tenden- 
cies in  other  directions  in  a  series  of  important 
cases* 

On  May  5,  1879,  it  rendered  a  decision  in  the  Sink- 
ing  Fund  Cases,  99  U,  S.  727,  in  which  it  announced  for 
the  first  time  the  wide  extent  of  the  control  which  the 
Government  might  exercise  over  corporations  char- 
tered by  Congress.  While  the  Impairment  of  ObU- 
gation  of  Contract  Clause  in  the  Constitution  applied 
only  to  the  States,  it  was  contended  by  the  railroads, 
party  to  these  suits,  that  the  Due  Process  Clause  con- 
tained in  the  Fifth  Amendment  constituted  an  equally 
strong  limitation  upon  the  power  of  the  Federal  Gov- 
ernment, and  that  this  latter  clause  rendered  invalid 
the  Act  of  May  7, 1878,  by  which  statute  Congress  had 
amended  the  charter  of  the  Union  Pacific  Railroad  by 
requiring  it  to  establish  a  sinking  fund  with  the  United 
States  Treasury  for  the  redemption  of  the  Government 
loan.  The  Court,  at  the  outset  of  its  opinion  rendered 
by  Chief  Justice  Waite,  remarked  that  it  was  indis- 
putable that  "^the  United  States  are  as  much  bound 
by  their  contracts  as  are  individuals.  If  they  repudiate 
their  obligations,  it  is  as  much  repudiation,  with  all 
the  wrong  and  reproach  that  term  implies,  as  it  would 
be  if  the  repudiator  had  been  a  State  or  a  mimicipaUty 
or  a  citizen."  It,  nevertheless,  laid  down  the  very 
broad  rule  that,  under  the  power  to  amend  the  charter, 
which  it  had  expressly  reserved.  Congress  retained  the 


INCREASE  OF  NATIONALISM  865 

power  to  establish  by  amendment,  "whatever  rules 
Congress  might  have  prescribed  in  the  original  charter 
for  the  government  of  the  corporation  in  the  adminis- 
tration of  its  affairs'',  so  long  as  the  amendment  should 
act  prospectively  and  not  upon  past  and  executed  trans- 
actions. And  it  held  that  the  sinking  fund  provision 
was  sustainable,  on  the  ground  that  "it  is  a  reasonable 
regulation  of  the  administration  of  the  affairs  of  the 
corporation,  and  promotive  of  the  interests  of  the  pub- 
lic and  the  corporators.  It  takes  nothing  from  the 
corporation  or  the  stockholders  which  actually  be- 
longs to  them.  It  oppresses  no  one,  and  inflicts  no 
wrong.  It  simply  gives  further  assurance  of  the  con- 
tinued solvency  and  prosperity  of  a  corporation  in 
which  the  public  are  so  largely  interested,  and  adds 
another  guaranty  to  the  permanent  and  lasting  value 
of  its  vast  amoimt  of  securities."  The  conclusion  thus 
reached  was  strongly  opposed  by  three  Judges,  Field, 
Strong  and  Bradley,  each  of  whom  in  a  separate  dis- 
senting opinion  displayed  his  fear  that  the  Court's 
decision  would  encourage  repudiation  of  contracts. 
Judge  Strong  said  that  the  doctrine  was  a  very  grave 
and  dangerous  assertion.  "It  is  especially  dangerous 
in  these  days  of  attempted  repudiation,  when  the  good 
faith  of  the  Government  is  above  all  price."  Judge 
Bradley  said  that :  "The  initiation  of  this  species  of 
legislation  by  Congress  is  well  calculated  to  excite 
alarm.  It  has  the  effect  of  announcing  to  the  world  and 
giving  it  to  be  understood  that  this  Government  does 
not  consider  itself  bound  by  its  engagements.  It  sets 
the  example  of  repudiation  of  Government  obligations. 
It  strikes  a  blow  at  the  public  credit.  It  asserts  the 
principle  that  might  makes  right.  It  saps  the  foun- 
dation of  public  morality."  Judge  Field  said  that  the 
decision  would  "tend  to  create  insecurity  in  the  title 


366  THE  SUPREME  COURT 

to  corporate  property  in  this  country.  It,  in  eflfect, 
determines  that  the  General  Government,  in  its  deal- 
ings with  the  Pacific  Railroad  Companies,  is  under  no 
legal  obligation  to  fulfil  its  contracts,  and  that  whether 
it  shall  do  so  is  a  question  of  policy  and  not  of  duty/' 
"I  am  aware,**  he  said,  "of  the  opinion  which  prevails 
generally  that  the  Pacific  railroad  corporations  have, 
by  their  accumulation  of  wealth,  and  the  numbers  in 
their  employ,  become  so  powerful  as  to  be  disturbing 
and  dangerous  influences  in  the  legislation  of  the  coun- 
try; and  that  they  should,  therefore,  be  brought  by 
stringent  measures  into  subjection  to  the  State.  This 
may  be  true ;  I  do  not  say  that  it  is  not ;  but  if  it  is, 
it  furnishes  no  justification  for  the  repudiation  or 
evasion  of  the  contracts  made  with  them  by  the  govern- 
ment. The  law  that  protects  the  wealth  of  the  most 
powerful,  protects  alsojthe  earnings  of  the  most  humble ; 
and  the  law  which  would  confiscate  the  property  of 
the  one  would  in  the  end  take  the  earnings  of  the 
other." 

"This  decision  lays  down  certam  fundamental  prin- 
ciples which  we  are  glad  to  see  again  affirmed  by  the 
tribunal  of  highest  authority,"  said  the  Nation.  And  it 
criticized  Judge  Bradley's  dissenting  opinion  as  "ex- 
tremely acrimonious",  and  said  that  "such  language 
from  a  Judge,  who  joined  in  reversing  the  Legal  Tender 
decisions  and  in  laying  down  the  doctrine  that  Congress 
may  legislate  backward  indefinitely  upon  contracts 
between  citizens,  is  not  calculated  to  promote  harmony 
between  the  legislative  and  judicial  branches  of  the 
Government,  or  to  make  an  agreeable  impression  on 
the  public  mind."  The  Springfield  Republican  also 
considered  that  the  Court  had  "gone  to  the  root  of  the 
matter  and  taken  the  general  ground,  towards  which 
its  decisions  have  been  long  tending,  that  grants  of 


INCREASE  OP  NATIONALISM  367 

rights  and  privileges  by  the  Federal  Government  are 
revocable,  unless  an  express  covenant  to  the  contrary 
is  made."  ^ 

Announced  at  a  time  when  corporate  pretensions 
and  assumptions  of  power  were  rapidly  mounting,  and 
when  corporate  corruption  of  Legislatures  was  fla- 
grant, this  decision,  confirming  in  the  Federal  Govern- 
ment enormous  powers  of  control  over  corporate  char- 
ters, constituted  a  warning,  not  only  to  railroads,  but 
to  all  corporations  doing  an  interstate  business  that, 
if  the  Government  should  ever  assume  to  regulate  them 
by  enforcing  National  incorporation,  the  scope  of  its 
regulation  would  be  subject  to  few  limitations.*  The 
decision  served  also  as  a  complete  answer  to  the  charges 
which  had  been  made  from  time  to  time,  after  the 
Legal  Tender  decision,  that  the  Bench  had  been  filled 
with  "railroad  attorneys"  for  the  purpose  of  obtaining 
decisions  favoring  these  corporations.'  The  absurdity 
of  this  charge  had  been  clearly  demonstrated  when, 
in  1877,  the  Court  decided  the  Granger  Cases  sustaining 
the  State  maximum  rate  laws,  against  the  violent  oppo- 
sition of  all  the  railroads  and  financial  interests  of  the 
country.  The  criticism  of  the  Court  had,  however,  broken 
out  again  when,  on  January  6,  1879,  only  four  months 
before  the  decision  in  the  Sinking  Fund  Cases ^  the  Court 

1  NaJtion,  May  8,  Nov.  18,  1879;  Springfield  RepMiean,  May  7, 1879. 

*An  interesting  illustration  of  the  power  which  Congress  reserves  to  itself  in 
granting  charters  appears  in  Netoport  and  Cindnnaii  Bridge  Co.  v.  United  Siatee 
(1882),  105  U.  S.  470,  in  which  a  corporation  constructing  a  bridge  across  the  Ohio 
River  at  Cincinnati  obtained  permissive  legislation  from  Congress  containing  a 
reservation  by  Congress  of  its  right  to  withdraw  its  assent.  The  Court  held  that 
the  franchise  thus  obtained  "was  a  species  of  property,  but  from  the  moment  of 
its  origin  was  dependent  on  the  will  of  Congress*',  and  the  company' ran  the  risk 
of  its  withdrawal.  It  was,  of  course,  possible  that  this  power  might  be  abused  by 
Congress,  but  "for  protection  against  unjust  or  unwise  legislation,  within  the  lim- 
its of  recognized  legislative  power,  the  people  must  look  to  the  polls  and  not  to 
the  Courts." 

*  See  History  cfihe  Supreme  Court  oj  the  United  States  (1912),  by  Gustavus  Myers, 
528-577,  written  from  the  Socialist  point  of  view. 


S68  THE  SUPREME  COURT 

held  in  United  States  v.  Union  Pacific  R.  JR.,  98  U.  S. 
569,  that  the  Government  had  no  right  to  recover  for 
itself  or  its  stockholders  the  enormous  sums  lost  through 
the  notorious  Credit  Mobilier  frauds  in  1864-1866, 
attendant  on  the  securing  of  amendments  to  the  rail- 
road charter,  and  through  the  corrupt  construction, 
coal  and  Pullman  Car  contracts  made  by  the  officers 
and  promoters.  These  frauds  had  caused  a  Natioi^al 
scandal  and  had  resulted  in  a  Congressional  investi- 
gation in  1872,  and  the  passage  of  the  Act  of  March  3, 
1873,  under  which  the  Attorney-General  was  directed 
to  institute  a  suit  in  equity  against  stockholders  and 
others  who  secured  stock  not  paid-up  or  illegal  profits 
from  contracts  made  with  themselves,  to  compel  the 
restoration  of  unlawfully  obtained  property  to  the  cor- 
poration or  to  the  Government,  **  whichever  shall  in 
equity  be  held  entitled  thereto.*'  The  suit  so  brought 
finally  reached  the  Supreme  Court  in  1876,  when  it 
was  exhaustively  argued,  and  a  reargument  was  had 
in  1878.  Of  the  charges  (which  for  the  purposes  of 
the  case  were  admitted  by  the  demurrer  to  be  true) 
the  Court,  in  its  decision,  said  that  "'more  unmitigated 
frauds  were  never  perpetrated  on  a  helpless  corporation 
by  its  managing  directors  than  are  set  forth  in  this 
bill."  Yet,  as  the  Court  pointed  out,  the  frauds  were 
committed  against  the  corporation  itself,  and  against 
such  innocent  stockholders  as  had  paid  in  full  for  their 
stock,  but  not  against  the  Government.  The  corpo- 
ration, however,  was  not  seeking  reUef  in  Court,  and 
"as  to  the  directors  and  stockholders  who  took  part 
in  these  fraudulent  contracts  they  are  particeps  crirainis 
and  can  have  no  relief.  This  class  probably  included 
nine-tenths  in  value  of  the  stockholders.'*  But  the 
Government,  on  the  other  hand,  was  not  in  a  position 
to  obtain  reUef  in  equity ;   it  was  a  creditor  under  its 


INCREASE  OF  NATIONALISM  869 

contract  with  the  raiboad  and  under  its  mortgage,  and 
must  be  supposed  to  have  guarded  its  rights  thereunder. 
To  the  Government's  contention  that  it  was  a  trustee 
for  the  public  and  had  visitorial  powers  to  correct 
frauds,  the  Court  answered  that  such  j)owers  could  be 
exercised  only  in  relation  to  municipal,  charitable  and 
religious  corporations,  or  to  restrain  a  private  cor- 
poration from  vUra  vires  acts.  To  the  argimient  that 
the  Government's  rights  should  be  liberally  construed, 
in  view  of  the  liberal  aid  which  it  had  givep  to  the  rail- 
road, the  Court  stated  that  "it  was  a  wise  liberality 
for  which  the  Government  has  received  all  the  advan- 
tages for  which  it  has  bargained,  and  more  than  it  ex- 
pected", and  though  the  corporation  "since  it  has 
grown  to  a  vigorous  manhood  .  .  .  may  not  have 
displayed  the  gratitude  which  so  much  care  called 
for  ...  it  is  but  another  instance  of  the  absence 
of  human  affections  which  is  said  to  characterize  all 
corporations."  An,d  the  Court  added  that  "a  Court 
of  Justice  is  not  called  on  to  inquire  into  the  balance  of 
benefits  and  favors  on  each  side  of  this  controversy, 
but  into  the  rights  of  the  parties  as  established  by  law, 
as  found  in  their  contracts,  as  recognized  by  the  es- 
tablished principles  of  equity,  and  to  decide  accord- 
ingly," There  was  no  doubt  that  the  Court  was  en- 
tirely correct  in  holding  that  no  recognized  principle 
of  law  authorized  the  maintenance  of  any  such  suits, 
and  as  the  Springfield  Republican  rightly  said:  "The 
Credit  Mobilier  suit  came  to  the  end  foredoomed. 
To  turn  a  bad  trade  into  a  good  one  by  means  of  a  sub- 
sequent lawsuit  is  a  task  as  hopeless  for  Congress  as 
for  anybody."  This  decision,  putting  an  end  to  the 
Government's  effort  to  make  the  guilty  parties  dis- 
gorge for  the  benefit  of  a  badly  looted  railroad  and  a 
cheated  government,  was  highly  imsatisfactory  to  the 


370  THE  SUPREME  COURT 

country.^  That  the  Court,  however,  did  not  intend 
to  allow  the  guilty  to  escapee,  in  a  case  properly  main- 
tainable at  law,  was  seen  in  WardeU  v.  Railroad  Co., 
103  U.  S.  651,  in  1881,  in  which  one  of  the  fraudulent 
coal  contracts  made  between  the  Union  Pacific  Rail- 
road and  a  prospector,  in  the  benefits  of  which  contract 
the  railroad  directors  were  to  share  under  the  guise  of 
a  separate  corporation  to  whom  the  contract  was  as- 
signed, was  held  to  be  "utterly  indefensible  and  illegal. 
•  .  .  Their  character  as  agents  forbade  the  exercise 
of  their  j)owers  for  their  i>ersonal  ends  against  the  in- 
terest of  the  company/*  ^  And  that  the  Court  was  also 
fully  aware  of  the  corrupt  lobbyism  prevalent  in  that 
era,  and  that  it  did  not  intend  to  allow  any  of  the  parties 
participating  in  such  illegal  actions  to  recover  in  suits 
arising  therefrom  had  been  shown  by  its  decision,  four 
years  before,  in  1875,  in  Trist  v.  Child,  21  Wall.  441. 
In  this  case,  involving  a  contract  for  legal  services  in 
relation  to  the  passage  of  an  Act  of  Congress,  the  Court 
had  said :  "The  foundation  of  a  republic  is  the  virtue 
of  its  citizens.  They  are  at  once  sovereigns  and  sub- 
jects. As  the  foundation  is  undermined,  the  structure 
is  weakened.  When  it  is  destroyed,  the  fabric  must 
fall.  Such  is  the  voice  of  universal  history."  After 
pointing  out  that  the  contract  was  to  obtain  the  passage 
of  a  law  to  pay  a  private  claim  without  reference  to 
its  merits,  "  by  means,  which,  if  not  corrupt,  were 
illegitimate",  Judge  Swayne  had  continued  (undoubt- 
edly referring  to  the  Credit  Mobilier) :   "If  any  of  the 

^  Springfield  Republican,  Jan.  7,  1879.  The  Independent,  Dec.  4,  1873,  had  said 
at  the  time  of  the  defeat  of  the  Government  in  the  Circuit  Court  in  this  case  that 
"the  best  lawyers  in  Congress  last  Winter  stated  that  a  suit  brought  in  a  respect- 
able Court  could  have  no  other  result.  The  country  may  as  well  understand 
that  when  Congress,  through  lobbying  or  otherwise,  makes  improper  grants  to  cor- 
porations, the  Courts  cannot  rectify  the  end." 

*  In  1891,  in  Qriswold  v.  Hazard,  141  U.  S.  260,  the  Court  upheld  a  judgment  for 
oiver  sixteen  million  dollars  against  the  president  of  the  Credit  Mobilier,  and  others. 


INCREASE  OF  NATIONALISM  S71 

great  corporations  of  the  country  were  to  hire  adven- 
turers who  make  market  of  themselves  in  this  way  to 
procure  the  passage  of  a  general  law,  with  a  view  to 
the  promotion  of  their  private  interests,  the  moral 
sense  of  every  right-minded  man  would  instinctively 
denounce  the  employer  and  employed  as  steeped  in 
corruption,  and  the  employment  as  infamous.  .  .  . 
The  same  thing  in  lesser  legislation,  if  not  so  prolific 
of  alarming  evils,  is  not  less  vicious  in  itself,  nor  less 
to  be  condemned/'  The  country  applauded  this  de- 
cision. "The  whole  American  people  will  cordially 
thank  the  Supreme  Court  for  its  authoritative  ex- 
pression that  services  of  this  kind  cannot  be  the  basis 
of  any  valid  contract  for  compensation,"  said  the 
American  Law  Review.  The  Nation  said  that  while 
it  remained  to  be  considered  whether  the  decision 
would  "prove  effective  to  remove  wholly,  or  in  any 
considerable  degree,  the  grossly  evil  practices  which 
it  so  strongly  condemns '\  nevertheless,  the  opinion  was 
stated  in  "very  plain  language,  coming  from  the  high- 
est tribunal  in  this  country,  and  language  very  much 
needed  at  this  time.  .  .  .  The  Supreme  Court  has  been 
at  the  pains  to  say,  in  a  manner  not  likely  to  be  for- 
gotten or  misunderstood,  that  all  and  the  best  of  the 
present  lobby  business  in  Congress  is  pernicious,  im- 
moral and  void;  and  it  has  also  indirectly  read  the 
Court  below  a  pretty  strong  lecture  upon  the  impro- 
priety of  a  judicial  tribunal  lending  its  aid  to  carry  out 
these  nefarious  transactions.  ...  A  disorganized,  in- 
competent Congress  is  a  continuing,  abiding  demand 
for  a  lobby,  and  it  is  a  demand  which  has  not  hitherto 
failed,  and  will  not  hereafter  fail,  to  produce  a  supply. 
Whoever  wishes  the  lobby  annihilated  must  first  see 
to  it  that  the  business  of  Congress  shall  be  conducted 
in  such  a  way  that  it  can,  with  reasonable  certainty. 


872  THE  SUPREME  COURT 

be  done  without  a  lobby.  .  .  .  The  conclusion  of  the 
whole  matter  is,  that  special  legislation  breeds  a  lobby, 
and  a  lobby  breeds  fraudulent  claims  and  the  corrui>- 
tion  of  Congress."  ^ 

In  two  cases  in  1880,  the  Court  took  another  ad* 
vanced  step  in  proclaiming  a  far  greater  field  for  Con- 
gressional legislation  than  had  hitherto  been  supposed 
to  exist  under  the  Constitution,  when  it  upheld  in 
sweeping  terms  the  authority  of  the  National  Grovern- 
ment  to  protect  by  legislation  its  own  functions,  agen- 
cies and  sovereignty.  In  Ex  parte  Sieboldy  100  U.  S. 
371,  the  Court  upheld  convictions  for  ballot  stuffing 
at  Congressional  elections  in  Baltimore  and  Cincin- 
nati, and  held  valid  those  sections  of  the  Enforcement 
Laws  of  May  31,  1870,  and  February  28,  1871,  which 
made  it  a  Federal  crime  for  a  State  election  officer  at 
a  Congressional  election  to  neglect  to  i>erform  any  duty 
required  of  him  by  State  or  Federal  law.  In  Tennessee 
V.  DaviSy  100  U.  S.  257,  an  even  greater  extension  of 
National  authority  was  promoted  when  the  Court 
sustained  the  constitutionality  of  the  Act  of  July  13, 
1866,  providing  for  the  removal  into  the  United  States 
Courts  of  any  civil  suit  or  criminal  prosecution  begun 
in  a  State  Court  against  a  Federal  officer  acting  under 
any  Federal  revenue  law.     The  defendant,  a  deputy 

^  Lobhying  at  WashingUm,  Amer.  Law  Rev.  (1875),  IX ;  Nation,  April  22»  1875. 
An  agreement  to  divide  fees  with  a  Government  officer  for  securing  an  appoint- 
ment as  counsel  was  emphatically  denounced  in  1880  in  Meguire  v.  Corwine,  101 
U.  S.  108 :  *'No  legal  right  can  spring  from  such  a  source, "  said  Judge  Swayne. 
"They  are  the  sappers  and  miners  of  the  public  welfare  and  of  free  government 
as  well.  The  latter  depends  for  its  vitality  upon  the  virtue  and  good  faith  of  those 
for  whom  it  exists,  and  of  those  by  whom  it  is  administered.  Corruption  is  always 
the  forerunner  of  despotism."  The  duty  of  a  Government  officer  to  refrain  from 
pecuniary  interest  in  its  contracts  was  forcibly  set  out  by  Judge  Field  in  Osoanyon 
V.  Winchester  Arms  Co.,  103  U.  S.  261,  in  a  suit  by  the  Turkish  Consul-General  in 
1881.  *'A11  such  positions  are  trusts  to  be  exercised  from  considerations  ci  duty 
and  for  the  public  good.  Whenever  other  considerations  are  allowed  to  intervene 
and  control  their  exercise,  the  trust  is  perverted  and  the  community  suffers.  .  .  . 
Personal  influence  to  be  exercised  over  an  officer  of  Government,  in  the  procnre- 
ment  of  contracts,  ...  is  not  a  vendible  article  in  our  system  of  law  and 


INCREASE  OF  NATIONALISM  873 

collector,  being  indicted  for  murder  in  the  State  Court, 
alleged  that  the  killing  was  in  self-defense  and  while 
engaged  in  discharge  of  his  official  duties,  and  he  sought 
to  remove  his  trial  into  the  United  States  Court.  The 
Court  held  that  Congress  had  power  to  authorize  such 
removal,  as  indispensable  to  the  enforcement  of  the 
National  laws  and  to  the  supremacy  of  the  National 
Government  in  their  execution.  This  decision,  said 
the  Nation  J  "practically  destroys  State  Sovereignty 
with  regard  to  criminal  law  in  a  class  of  cases  in  which 
it  has  hitherto  always  been  supposed  to  be  intact." 
When  this  case  was  considered  with  Ex  parte  Virginiay 
in  this  same  year,  holding  that  a  State  Judge  who  dis- 
criminated against  negroes  in  the  impaneling  of  a  jury 
was  indictable  under  the  Civil  Rights  Act,  it  was  not 
astonishing  that  these  decisions  were  profoundly  dis- 
turbing to  those  who  opposed  centralizing  tendencies. 
"They  have  attracted  but  little  attention  at  the  North," 
said  the  Nation^  "but  at  the  South  these  decisions  have 
been  received  with  many  expressions  of  hostility,  as 
being  aimed  at  what  is  left  of  the  once  cherished  doc- 
trine of  State-Rights.  They  are  really,  however,  of 
as  much  importance  to  one  region  as  to  another,  and 
are  destined,  unless  we  are  much  mistaken,  to  play  a 
prominent  part  in  the  future  constitutional  develop- 
ment of  the  country.  .  .  .  Important  and  far- 
reaching  changes  have  been  brought  in  the  relation  of 
the  State  to  the  General  Government."  And  the 
American  Law  Review  also  pointed  out  how  vividly  the 
Siebold  Case  illustrated  a  growing  disp>osition  to  en- 
hance the  i